Chapter 4 Dispute Resolution

Question 1

what are business activities that lead to disputes?

Answer 1

-pollution, motor vehicle accident, hacking, by law changes, deliquent customers, equipment breakdown, unhappy customers, damaged goods, problem employees

Question 2

what is alternate dispute resolution ADR

Answer 2

• resolving dispute outside of courts to find a win- win win situation - avoids delay, decreases expenses/ lost productivity, and publicity
  methods: - negotiation, mediation, arbitration

Question 3

negotiation ADR

Answer 3

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

Question 4

mediation ADR

Answer 4

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

Question 5

arbitration

Answer 5

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

Question 6

advantages of alternative dispute resolution (6)

Answer 6

1. parties maintain control of solutions (lawyers do if in court)
2. may preserve confidentiality
3. may preserve relationship
4. can be less costly
5. can be less time consuming
6. each side can agree with an outcome – whereas with litigation one side wins

Question 7

Disadvantages of alternative dispute resolution (

Answer 7

1. courts have more power to extract info, and there is a penalty of 14 years in jail for lying
2. decisions of adr do not follow precedents
3. inappropriate when there is a power embalance
4. no public record

Question 8

litigation process

Answer 8

one party brings legal action against another,

Question 9

what is the civil function of court

Answer 9

civil (private) cases are disputes involving private interests of individuals, groups, and organizations

Question 10

commercial litigation

Answer 10

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

Question 11

plaintiff

Answer 11

party that initiates lawsuit against another party

Question 12

defendant

Answer 12

party being sued – party accused of causing damage or injury

Question 13

4 stages of lawsuit

Answer 13

1. pleadings
2. discovery (could include a settlement)
3. trial and decision
4. enforcement

Question 14

what occurs during stage 1 of lawsuit: pleadings

Answer 14

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

Question 15

What occurs during stage 2 of lawsuit: discovery

Answer 15

• 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

Question 16

settlement

Answer 16

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

Question 17

what occurs during stage 3 of lawsuit: Trial

Answer 17

• 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

Question 18

balance of probability

Answer 18

• judge will weight the evidence of each case

- side that presents the most weighty evidence generally wins

Question 19

judgement

Answer 19

(part of trial)

• decides liability- usually compensational
• • the judge determines who pays the cost of the case

Question 20

damages - monetary compensation

Answer 20

special damages- quantifiable loss (damage/ wage etc)

general damages- non quantifiable (pain/ suffering)

Punitive damages- punish wrong doer especially if they were deliberate

Question 21

equitable remedies where damages are not appropriate

Answer 21

injunction - stop doing something
specific performance - do something you agreed to do
accounting- pay over profit made because of a misdeed

Question 22

what occurs during stage 4 of lawsuit: enforcement

Answer 22

winner must enforce judgement with assistance from the court

Question 23

judgement debtor

Answer 23

party order by the court to pay a specific amount to the winner

Question 24

failure of judgement debtor to pay

Answer 24

• post trial hearing to identify assets of debtor and how to execute against assets
• seizure of valuable assets
• seizure of property
• garnishment of wages

Question 25

appeals

Answer 25

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.

Question 26

appealant

Answer 26

party who begins or files an appeal

Question 27

respondent

Answer 27

party against whom the appeal is filed