Chapter 4 Dispute Resolution Flashcards
what are business activities that lead to disputes?
-pollution, motor vehicle accident, hacking, by law changes, deliquent customers, equipment breakdown, unhappy customers, damaged goods, problem employees
what is alternate dispute resolution ADR
- resolving dispute outside of courts to find a win- win win situation - avoids delay, decreases expenses/ lost productivity, and publicity
methods: - negotiation, mediation, arbitration
negotiation ADR
process of deliberation and discussion to reach a mutually accepted resolution to dispute
- parties discuss
- needs cooperation and compromise
- can be conducted through representatives (lawyer)
- can be useful to resolve any dispute except insurance
- agreement may not be legally binding
mediation ADR
neutral person called mediator assists parties in reaching a settlement of their dispute
- mediators do not make the decision
- mediators facilitate decision making which leads parties to resolve dispute voluntarily
- helps preserve relationships
- ends with settlement agreement that sets out terms - courts may affirm the mediated resolution – this brings closure and prevents future litigation
arbitration
third person called arbitrator appointed by parties makes a decision that is binding
hearing- parties / representatives make submissions and then the resolution is out of control by the parties
-works well for commercial and business disputes
-parties select arbitrator with relevant experience
-finality of decision depends on what parties have agreed to beforehand
advantages of alternative dispute resolution (6)
- parties maintain control of solutions (lawyers do if in court)
- may preserve confidentiality
- may preserve relationship
- can be less costly
- can be less time consuming
- each side can agree with an outcome – whereas with litigation one side wins
Disadvantages of alternative dispute resolution (
- courts have more power to extract info, and there is a penalty of 14 years in jail for lying
- decisions of adr do not follow precedents
- inappropriate when there is a power embalance
- no public record
litigation process
one party brings legal action against another,
what is the civil function of court
civil (private) cases are disputes involving private interests of individuals, groups, and organizations
commercial litigation
business suing business
- litigants pay for bringing the matter through the judicial system and any recovery of compensation.
- courts adjudicate – hear case and make decision
plaintiff
party that initiates lawsuit against another party
defendant
party being sued – party accused of causing damage or injury
4 stages of lawsuit
- pleadings
- discovery (could include a settlement)
- trial and decision
- enforcement
what occurs during stage 1 of lawsuit: pleadings
claim- plaintiffs aligation against defendant - the claim includes key points the plaintiff needs to prove at trial.
if the defendant is disputing (disagreeing) the defendant will prepare a defense which will be their
counterclaim- claim by defendant against the plaintiff
What occurs during stage 2 of lawsuit: discovery
- this is the process of disclosing evidence to support claims
- both parties reveal facts supporting their allegations (documents and witnesses)
- purpose is to test the strengths and weakness of both sides
- parties are encouraged to reach a compromise at this stage
- settlement could occur
settlement
payment into court- defendant admits liability and offers to pay the owed money, plaintiff either accepts or rejects
offer to settle- plaintiff wants to settle out of court - offers to settle for a lower amount of money- the defendant either accepts or rejects
what occurs during stage 3 of lawsuit: Trial
- formal hearing before judge– binding decision
-trial begins with opening statement by plaintiffs lower
plaintiff-burden of proof (must prove ) -introduces evidence to support claim -direct examination of witnesses (specific questions) – cross examined by the defense lawyer
defendant- presents case and challenges claim/ witnesses and introduces their own account of events
- tries to bring doubt into judge/ jury
balance of probability
- judge will weight the evidence of each case
- side that presents the most weighty evidence generally wins
judgement
(part of trial)
- decides liability- usually compensational
- the judge determines who pays the cost of the case
damages - monetary compensation
special damages- quantifiable loss (damage/ wage etc)
general damages- non quantifiable (pain/ suffering)
Punitive damages- punish wrong doer especially if they were deliberate
equitable remedies where damages are not appropriate
injunction - stop doing something
specific performance - do something you agreed to do
accounting- pay over profit made because of a misdeed
what occurs during stage 4 of lawsuit: enforcement
winner must enforce judgement with assistance from the court
judgement debtor
party order by the court to pay a specific amount to the winner
failure of judgement debtor to pay
- post trial hearing to identify assets of debtor and how to execute against assets
- seizure of valuable assets
- seizure of property
- garnishment of wages
appeals
optional if party does not want to accept trial decision, it is the process of arguing to a higher cour that the decision wa wrong.
appealant
party who begins or files an appeal
respondent
party against whom the appeal is filed
