Analysis of Alternative Dispute Resolution

This assignment provides a comprehensive analysis of Alternative Dispute Resolution (ADR) in the context of the English legal system. It discusses the various types of ADR processes, such as mediation and arbitration, and their advantages over traditional litigation methods. The importance of confidentiality and cost-effectiveness in ADR is also highlighted, making it an attractive option for parties seeking to resolve disputes efficiently. References from books, journals, and online resources are provided, demonstrating the significance of ADR in modern legal practice.

Business Law

Table of Contents
INTRODUCTION...........................................................................................................................1
TASK 1............................................................................................................................................1
P1 English Legal system and numerous sources of law..............................................................1
P2 Roles of government in framing laws....................................................................................4
TASK 2............................................................................................................................................5
P3(a) Legal obligation of employers...........................................................................................5
P3(b) Employment and contract law...........................................................................................6
TASK 3............................................................................................................................................6
P4 Lawful explanation to business pitfalls..................................................................................6
P5 Explanation for solution.........................................................................................................7
TASK 4............................................................................................................................................8
P6(a) Meaning and definition of Alternate Dispute Resolution (ADR) and advantages............8
P6(b) Recommendations for giving ADR...................................................................................9
CONCLUSION................................................................................................................................9
REFERENCES..............................................................................................................................10

INTRODUCTION
Business law studies significant rules and regulations which are recognised and framed
by government. Nowadays, it become essential for individuals as well as corporations to comply
with these rules so that they can protect their rights. This law consists with civil and criminal
which are prescribed by supreme and also commanding on right things to forbid negative or
wrong effects. As it covers wider range of topic where many laws, acts, rules and regulations are
famed to protect the rights of individuals or giving idea how business can be established (Folsom
and et. al., 2012). In this report, structure of English legal system has been explained which help
to people in resolving their disputes and along with this various sources of law are also being
discussed. Furthermore, several case laws are also discussed in context of contract and
employment law. In last, concept about Alternative Dispute Resolution (ADR) is explained here
with some benefits.
TASK 1
P1 English Legal system and numerous sources of law
In modern era, there are many different court systems which become complicated for
organisation as well as entities in systematic manner. As government are trying to reducing the
conflicts among them by modifying and altering them time to time. In court different types of
suits are filled which are dealt with specific laws and courts. In UK, the system of English Legal
system is explained here where parties are having opportunity to resolve their disputes with the
help of them (Ward, 2011). In this system, court is bifurcated into two parts i.e. criminal and
civil. As below diagram is explaining all the steps which contain in this structure.
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Figure 1:English Court Structure
(Source: English Court System, 2015)
In above diagram it is clearly mention that court is divided into parts i.e. civil and
criminal (The English Legal System, 2015). Further, these are also segregated in different parts.
Let’s discussion will start from Civil Court.
County courts – In this session, most of the civil actions are began here. The case related
with recover of money, disputes among customers over goods and services, personal injury and
many more. Along with this cases are allocated on different three tracks and depends upon their
value and complexity.
High Court – Here petitions from county court are coming where actions can be
initiated. Cases are contained here such as defamation, high value of personal injury, recover of
debt amount and many more. It also considered those cases which are suited for first time which
are committed with serious offence.
Court of Appeal civil division – Applications from high court as well as cases from
multi-task of county court are coming here.
Now, discussion about Criminal Court is here.
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Magistrate court – It is a first tire of this criminal justice system where all criminal cases
are started here. It can dispose some cases which are of less serious offence and carry out some
infringements up to six months. This also dealing with recovery of local taxes which is also
known as council tax.
Crown court – Indictable offences are deal here which is of serious offence and can lead
into long term prison sentences.
Court of Appeal criminal division – Petitions or appeals from crown court are heard by
here to give valid and final conclusion to cases.
Apart from that, supreme court which is also known as apex courtyard of country where
appeals from high court are goes there.
In legal system it also includes Solicitors, Barristers and judges who are playing essential
role. The work of barrister is that who represent the case in court. They can also take
independent decisions while working in crown court, high court or making appeal in courts.
Other are solicitors, who work in magistrate and county court. But litigation is considered as
small part of work. For example; dealing with commercial transaction, property, corporate
matters and many more. Here the amount of private are also including in this who does not
involve in any litigation process such as advancing on tax matters, making wills etc. Last is judge
whose role are to hear the cases and make decision in supreme and county court. If accused is
found with guilty, then judge is having authority to impose penalties or imprisonments.
Further, sources of different law have been explained here which help to dispute parties
in resolving their arguments.
Legislation – Primary and secondary sources are considered here where laws are made
on the basis of it. Primary source consists with where parliament acts are referring as statues
(Gillespie, 2013). In contrary to this, some power has been given to local authorises or public
bodies for making some regulation for the benefit of resident people.
Equity law – This contain with those rules and regulation which is providing equal rights
to human in all places. As these laws are outlined for the advantage of people only.
EU Legislation – In this rules, policies, laws are governed by EU. Here, whoever are the
member of European Union has to comply with these rules and regulation whether it is UK. But,
if any encounters are arising among EU and English law, then WU will always conquer.
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Case law – It comprises with criminal and civil law. Here courts are giving judgement on
the basis of existing rules and regulations which are already drawn by parliament. In civil, cases
regarding debt recovery, consumer protection are considered here. But in criminal if offence is of
serious nature like murder, theft or violence are consisting at this juncture.
Common Law – It is body of unwritten laws which is based on the precedents and also
established by the courts. It can influence the decision-making process which are of novel cases.
Along with this, outcome cannot be determined properly which are based on the existing statutes.
Furthermore, below mention are some acts where organisation has to considered them so
that they can offer legal facilities to people.
Working time regulation 1998 – This act applies to all organisations whether it is small
or large and those employees who working as a full time job. Here, working hour of employee in
companies are 48 hours per week and these are set by the government.
Pension act 1995 – In companies this kind of benefit is provided by employer to their
employees after the retirement. Through this employee will be secure about their job and security
for a life time.
P2 Roles of government in framing laws
As numerous rules and regulations are framed by government for the benefit of people
and they are also playing vital role in that. Government of country is having right to framed some
laws with the prior approval of parliament (Puetter, 2012). While making finalisation of acts,
firstly it is drafted in ‘green paper’ which is providing initial outline to members who are present
in session of parliament. Some stages are there where bill has been passes so it can be converted
into act of parliament or law. While following these stages bill will be formulated in the form of
law.
First stage – It is primary step in which bill is represented in front participants who are
presented in parliament.
Second reading – This is second phase where key principles about the drafted bill are
founded to decided that further steps will take place or not. So, debate take place among the
members which are conducted by chamber of parliament.
Committee stage – Here, representation of bill is done in front of both houses of
parliament (house of lords and common). Along with this, members are giving their votes and
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opinion for making alteration or modification in bill, if it is required. With the help of votes, it
will decide that modification is required or not.
Report stage and third reading – At this phase, alteration will take place which are
discussed with members. In third bill, conversation about the bill will be done which will
represent into report on immediately basis (Schooner, 2011). Along with this final votes will be
taken by members for making any changes and it also considered final stage.
Royal assent – This is the final stage where approval of Queen is considered for
translating bill into act of parliament.
In UK, the role of Queen is that all the bill is approved by the them, then this become the
act of parliament. Whenever bill has to be converted into Act of parliament, prior approval is
needed by them.
Apart from that common and statutory laws are also there where government is making
laws on that. The difference between among them is below.
Basis of difference Common law Statutory law
Creation of law In this laws are evolving with
new decision which are made
by judges in courts.
Government agencies are
issuing new laws for the
benefit of local people.
Nature The nature of this law is
instructive.
Nature is of prescriptive.
Origin From precedent of judiciary From legislature or
government.
TASK 2
P3(a) Legal obligation of employers
In current scenario, it is important for employers to protect the rights of employees from
any illegal or prohibit activities which are performing by them. For this, government had also
made many rules and regulations where employer has to comply with them in organisation for
the benefit of employees. Some of the acts are enumerated below;
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Occupational health and safety act 2004 – This act is the cornerstone of legislative and
administrative through which it can measure how to improve the occupational health and safety
in Victoria (Burch, 2011). This specified the duties which are imposed on employers and
supporting the acts such as; keeping records, required license for executing specific activities and
many more.
Workers compensation – According to the provision of Worker Compensation Act
2006, employers are liable to protect employees from injury which will take place in
organisation. It is significant for them to provide some additional benefit in terms of
compensation to employees if they had been injured serious.
Harassment – This comes under Protection from Harassment Act 1997. This act is
providing remedies in both civil and criminal cases. At work place it is responsibility of
employees not to harass any employee to perform their duties forcefully. Along with this, if any
activities which are performing by anyone such as racial harassment, stalking behaviour and
many more are found, then strict punishment is given to them.
Case Law, Go Kidz v. Bourdouane [EAR 10th September 1996], an appeal of tribunal
affirmed that it is responsibility of employer to prevent the acts of sexual harassment by non-
employees on employees in course of their duties. Along with this they have to pay attention on
the activities which are performing by employees.
Equal opportunities – As per provision of Equal opportunity act 2010, it is a major
responsibility of employer to treat all employees equally at workplace. Along with this, it is also
their responsibility not to differentiate any employees on the basis gender, nationality, religion.
However, if all laws and acts are not complying by employees at workplace, then it
became difficult for them to retain employees for a longer period of time.
P3(b) Employment and contract law
Employment and contract law had been introduced where employee can recover the
compensation amount for recovery of injury. This contract is formed among employers and
workers which contain all terms and conditions and has to be performed by workers (Finlay,
Stewart and Parker, 2013). As per provision of Health and Safety Act 1974, it ensures about the
duties which has to be performed by employees. Some of the provisions which are included in
this; maintain healthy environment, conduct trainings session for employees in context of using
equipment’s and many more.
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With reference to given case study, health and safety act 1974 is applied. In this incident,
a girl who is 16-year-old was employing in fast food and cooking fries. While doing so, she
slipped on floor due to leakage of water and her hand unfortunately break and went into deep
fryer and burns her hand. On that day, there was a shortlisted of staff and team leader was
functioning upon to maintain cash flows instead of checking that area.
According to this act, ay entity whether it is large or small are not permitted to keep
children whose age is less than 18 or 16 or as the jurisdiction. If they are keeping children and
any injury had taken place, then they are liable to compensate them or provide proper treatment
facility. So, responsibility of team leader is that they should monitor all those activities which are
performing by staff and has to compensate injured amount to that girl.
Apart from that Employment Protection Act 1987, it states that both employers and
employees has to perform their roles and responsibilities which are specified in employment
contract. along with this, they need to protect the rights of employees if any staff get injured.
Along with this, supervision on staff should done on regular basis so that proper training session
can be conducted, if they required.
TASK 3
P4 Lawful explanation to business pitfalls
The government of country had framed many rules and regulations regarding the rights of
employees at workplace. An employer is not having authority to terminate any staff or worker
without having a valid reason, otherwise they can suit against them (Akhtar‐Schuster and et. al.,
2011). Government had specified date where employees can claim under Section 96 Unfair
Dismissal (Employment act 1996) if their agreement period is finished.
 When the date of employment is beginning before 6th April 2012, then after completion
of first year they are having right to claim for compensation; and,
 When date of employment is started after 6th April 2012, then after completion of two
years they are having authority to suit against them.
In given case first, Calvin is working for a large fashion house as a designer. He was
employed there since last four years. On Monday morning his employer i.e. Donna arrived at
office and found that 100 pound were misplaced from her petty cash book. On the basis of this,
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she dismissed Calvin without having any sufficient reason and said that “Calvin is thief and he
will not work here anymore”.
As per unfair dismissal act, Donna is not having authority to dismiss Calvin until and
unless she is not having any valid reason. Apart from this. If termination takes place, then she
has to give time period or opportunity of being heard should be given. Moreover, Calvin
privileges to suit against Donna and compensate loss amount.
Wrongful dismissal is a claim for breaching of employment contract. It is not same as
unfair dismissal. In this workers or staff are having right to claim for wrongful activities which
are performed by the employer in Employment Tribunal. The case can be suit in court within
three months from the effective date when termination of their employment take place.
Furthermore, in second case, a small convince store is running by Kevin’s father Dan.
His store was damage due to fire. So Dan applied for the insurance and fill out the proposal for
claiming loss amount. But bank refuses to pay the loss amount to them. As per insurance act, any
bank company is not having authority to pay compensation amount to damaged party. But, Dan
is having authority to pled in the court for recover loss amount from bank.
Misrepresentation is an untrue statement which are made by parties regarding presenting
the facts at the time of formation of contract. Furthermore, it gives right to person to claim
against the other party who has represent the misrepresentation. There are different types
misrepresentation which can be used by person and these are explained as below:
Fraudulent misrepresentation – It occurs when party knowingly come into a contract
while presenting the untrue statement of facts. A claimant who has become the victim with
alleged fraudulent of misrepresentation can suit for the recovery of rescission.
Negligent misrepresentation – In this party is trying to induce another party to form a
contract while ensuring about that a reasonable care has been taken for representing the facts. If
such reasonable care ensures about the truth of statement is not there, then wrong party become
victim of negligent misrepresentation.
Innocent representation – This induce the party misrepresentation has been occurred at
the time of contract. But when the person is making misrepresentation and having reasonable
grounds for believing that it can be true at the time representation was made. So in such case,
claimant who become the victim can recover the loss due to misrepresentation of facts.
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In case of Dan, negligent misrepresentation has been applied because at the end he forget
that previous claim was not more than 23 months.
P5 Explanation for solution
In first case, employer is having major responsibility to perform their duties in
appropriate manner so that they can protect the rights of individuals. If any dismissal is taking
place, then there should be valid reason for that or provide them opportunity to prove themselves
as innocent. Section 94 of employment act, states about the rights of worker or staff if any unfair
dismissal take place. Moreover, they are having right to fill case against them (Painter, 2011).
Apart from that, there are few situations where staff or workers can get terminated from entity
and these are discussed in section 95 of mention act. If employment contract is terminated by
both parties and there is limited time period which has been discharged by virtue of limiting
event.
Justification for first case is that, if Donna wants to terminate, then she should collect
sufficient evidence which does not proves him innocent.
For second case is that, Dan can plead in court through written application for recovering
loss amount for the damage of his stores.
TASK 4
P6(a) Meaning and definition of Alternate Dispute Resolution (ADR) and advantages
ADR is that procedure where disputes among the parties are resolve without any
litigation which usually consists less expensive and more expeditious. It allows parties to come
up with more effective and creative solution which may not be permitted by court and these are
also not legally imposed on them (Storbacka, 2011). There are basic terms which needs to be
known by parties for settling their disputes.
Arbitration - It is informal process where third party hear the cases from both side and
draw a conclusion for them. It depends upon the parties to agree upon the decision which are
given by third person.
Mediation – It is a collaborative process where mediator is work with both parties and
come to a mutual solution which are agreed by them. The mediation is ordinarily considered as
non-binding.
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Arbitrator – Here, impartial person is having right or given some power to resolve
disputes by hearing both parties issues to come up valid conclusion (What is Alternative Dispute
Resolution?, 2017).
Binding and non-binding – Binding decision is that ruling where parties are abide
whether to agree or not the conclusion. In contrary to this, parties are having authority to ignore
the decision in case of non-binding.
Now there are some advantages of ADR which will give benefit to parties by resolving
their disputes.
Cheapness – It is considered as cheap in comparison to advantage of courts. While
litigation process of court consists with fees, delays or sometimes having complex process which
are not incurred in ADR process (Hollander-Blumoff and Tyler, 2011).
Control – Here parties are having control over the conflicts and are having different ways
to handle the cases rather than court. Along with this, parties are having choice to agree upon the
decision which are given by third party.
Privacy – The decision of court publically conducted. A clear advantage of using ADR is
that the decision which are given by parties are held confidential and it also does not impact
upon the reputation of person.
Single procedure – It is a single procedure where parties are having opportunity to
resolve the dispute in single way rather than prefer to long and time wasting litigation process.
P6(b) Recommendations for giving ADR
Concept of ADR in every country is different and having their own rules and regulations
which are specified by government. For example, in USA, ADR consists with several rules and
regulations where parties are having authorities to adopt this process. Along with this, different
suggestion and advices are given by government which is giving advantage to parties and saving
their time and cost. Well this concept was firstly used in USA. In context of UK, in this process
there is an intervention of third party who is resolving disputes and giving valid conclusion to
parties (Ridley-Duff, and Bennett, 2011). Else in both countries it gives benefit to parties only
for resolving their disputes without intervention of court.
As per given case scenario, Antwon is the owner of large investment firm and having
arguments with Tyrell who is the owner of computer software. The conflicts among them has
been gone for a longer period of time but still they are not getting an appropriate solution for
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this. Along with this, both persons are wishing to preserve their working relation and resolve the
dispute without taking help of court. For this, parties are having option to settle their clashes with
the help of arbitration which comes under alternative dispute resolution. Through this they can
also maintain positive relation among them and save time as well as cost.
CONCLUSION
After summing up report it can be concluded that nowadays it become essential for
human being too aware about rules and regulations which are framed by government in order to
get special privileges. For example, with the help of equality act 2010, employee will aware what
are their rights at workplace. If they found that employer is discriminating them, then they are
having authority to sue against them. Further, there should be a valid reason when employer
wants to terminate employee and which are specified in acts. Moreover, using ADR process, it
will be beneficial for parties only because it is less expensive and time-saving procedure. Else,
the decision which are given by third person are kept as confidential which also maintain the
relationship among parties.
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REFERENCES
Books and journals
Akhtar‐Schuster, M. and et. al., 2011. Improving the enabling environment to combat land
degradation: Institutional, financial, legal and science‐policy challenges and
solutions. Land Degradation & Development. 22(2). pp.299-312.
Burch, E.C., 2011. Litigating Together: Social, Moral, and Legal Obligations. BUL Rev. 91. p.87.
Finlay, A. J., Stewart, C. L. and Parker, M., 2013. Open disclosure: ethical, professional and
legal obligations, and the way forward for regulation. The Medical Journal of
Australia. 198(8). pp.445-448.
Folsom, R. H. and et. al., 2012. International business transactions: a problem-oriented
coursebook. ThomsonReuters.
Gillespie, A., 2013. The English legal system. Oxford University Press.
Hollander-Blumoff, R. and Tyler, T. R., 2011. Procedural justice and the rule of law: Fostering
legitimacy in alternative dispute resolution. J. Disp. Resol., p.1.
Hongsheng, S., 2012. Legal Solutions for Suppression of Acts Detrimental to China Marine
Territory Security [J]. Law Science Magazine. 1. p.018.
Painter, R. W., 2011. Pro Se Litigation in Times of Financial Hardship—A Legal Crisis and Its
Solutions. Family Law Quarterly. 45(1). pp.45-94.
Puetter, U., 2012. Europe's deliberative intergovernmentalism: the role of the Council and
European Council in EU economic governance. Journal of European Public
Policy. 19(2). pp.161-178.
Ridley‐Duff, R. and Bennett, A., 2011. Towards mediation: Developing a theoretical framework
to understand alternative dispute resolution. Industrial Relations Journal. 42(2). pp.106-
123.
Schooner, S. L., 2011. Desiderata: Objectives for a system of government contract law.
Storbacka, K., 2011. A solution business model: Capabilities and management practices for
integrated solutions. Industrial Marketing Management. 40(5). pp.699-711.
Ward, R., 2011. Walker & Walker's English legal system. Oxford University Press.
Online
The English Legal System. 2015. [Online]. Available through:
<http://consumer.newbeginningsresources.co.uk/legal/the-english-legal-system/>.
[Accessed on 23rd October 2017].
What is Alternative Dispute Resolution?. 2017. [Online]. Available through:
<http://hirealawyer.findlaw.com/choosing-the-right-lawyer/alternative-dispute-
resolution.html/>. [Accessed on 23rd October 2017].
https://www.worksafe.vic.gov.au/laws/ohs
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