5.0 DISPUTES

Question 1

4 method of dispute resolution

Answer 1

1. Negotiation
2. Mediation
3. Arbitration
4. Litigation

Question 2

Negotiation

Answer 2

Discussion to resolve dispute through compromise

Privileged (of not settlement can’t use matters discussed in court later)

ADV:

• parties control process (can be private)
• parties control outcome (eliminate uncertainty)
• often less money than litigation

Question 3

Mediation

Answer 3

Assisted negotiation

3rd party facilitates settlement by encouraging compromise

Privileged

Question 4

Arbitration

Answer 4

Private trial process in which parties set rules (choose arbitrator, terms of reference, rule of procedure a d law applied)

Can be

• mandatory (binding): parties agree by contract prior to dispute that they’ll arbitrate and are bound to outcome
• voluntary (non-binding): parties agree to arbitrate after dispute

ADV

• private (no public access)
• can get arbitrator with specialized knowledge

DIS

• arbitrators must be paid (unlike judge)
• time accommodate arbitrator

Question 5

Litigation

Answer 5

Use court system to resolve dispute. Independent party (judge/jury) decides based on the case of evidence presented at trial

Judge control process (subject to rules of court)

DIS

• slow
• money
• public
• risky (all or nothing outcome)
• uncertain outcome
• high energy/emotion
• no control over process/outcome/confidentiality

Question 6

Technical evidence

Answer 6

Parties hire experts to explain technical evidence to court

Question 7

Expert witness

Answer 7

Person qualified by court with skill, expertise, training and experience who helps decision maker on technical manners

Can prove opinion

Ethical duty to act fair/neutral and not advocate

Question 8

Lay persons

Answer 8

Provide factual evidence

Not opinions

Question 9

Limitation period

Answer 9

=time within which an aggrieved party can commence legal action

Limitations Act SK determines time period (2 years from discovery, subject to ultimate limitation period of 15 years)

Parties can agree to shorter time in contract

Discovery: start when Plaintiff could have reasonably known of their right to bring action

Professional can get insurance during this period

Question 10

Several liability

Answer 10

Each defendant is only liable for damages in proportion to its contribution

Question 11

Joint and several liability

Answer 11

Each defendant is liable for all damage regardless of contribution of loss

Question 12

Vicarious liability

Answer 12

Liability of one party for fault of another

Eg. Employees have vicarious liability for wrongs of employees