Dispute Resolution Flashcards
What are the 5 common methods of dispute resolutions?
1) Negotiation
2) Non binding decision from the Third Party
3) Mediation
4) Arbitration
5) Litigation
What is the role of the consultant in the dispute process?
They are the 1st interpreter to deal with the contract.
Makes findings in regards to the performance under the contract
Must be consistent with the intent of the contract
can show no partiality. (remain equal)
Mediator for both parties. Any questions/claims/dispute is given to the consultant.
Write notice in writing
Provides findings/decisions in writing in a reasonable time
If either party disagree by providing the notice to the consultant, then yeah. But if there has been no response, its deemed to be accepted.
Explain the Negotiation Method
1) Process between two parties to talk about how to dispute the conflict themselves.
2) Negotiation is reached between two parties WITHOUT the involvement of a 3rd Party.
3) You can do it without lawyers depending on the dispute. Still advisable for each party to have a consultant/lawyer before settling the matter. You need to do the risk/cost/benefit analysis of the settlement you wish to obtain.
4) When you’re negotiating, the information shared will not be valid in court. This is known as “without prejudice” in meetings and correspondence.
State the Advantages and Disadvantages of doing Negotiation Method
Adv:
1) Parties have control over the process
2) Parties have control over the result (non-binding)
3) cheap and quick
Dis:
1) Voluntary - you cannot force a party to negotiate.
2) No other form of third party is allowed in the negotiation process.
What are some examples of Non-Binding Third party people?
Person with expertise in the contract
referee like MMCD
Explain the Mediation Method
Facilitated Negotiation (organized)
There is a mediator that faciliates communication between both parties to ensure fair, honesty and impartially. They do not take sides, give legal adivce or provide counselling. They do not act as a judge or arbitrator. The settlement is still reached between two parties.
They’re there to assist in clarifying what both parties want. They are there to help each party understand what the other’s interest are.
They could have both parties talk face to face with the mediator there, or have both parties talk to the mediator [vice versa]
They also assist in searching for a resolution but will not force a solution.
Advantages and Disadvantages of Mediation Method
Adv:
1) quick success, cheap
2) control over results
3) private and no precedent (principle) - [freedom of speech kinda thing]
4) novel sol’ns
Dis:
1) Non binding
2) expensive if it doesnt work out
3) can expose weakness
Explain the Arbitration Method
Process where the decision is made by the third party such as judge who is the arbitrator.
Binding, Private, Court like
Limited ability to appeal
Slightly less formal than actual courts
Arbitrator arranges a meeting between parties and discuss what issues need to be resolved.
Then holds a hearing to hear both sides present information and evidence to support their case. Then makes a final decision. ( Can take a while )
Explain the Arbitration Method
Process where the decision is made by the third party such as judge who is the arbitrator.
Binding, Private, Court like
Limited ability to appeal
Slightly less formal than actual courts
Arbitrator arranges a meeting between parties and discuss what issues need to be resolved.
Then holds a hearing to hear both sides present information and evidence to support their case. Then makes a final decision. ( Can take a while )
Advantages/Disadvantage to Arbitration Method
cheaper and quicker for simple cases can select a judge/expert private full cost can be recoverable binding decision
dis: can be lengthy, cause it's a trail fees for arbritator more third parties cannot be added limited appeal you can't cut the deal in half possible risk of ambush with evidence.
Explain the Ligitation Method
Actual Judge in Canada with an adversial system. Formal rules of court, and will cost engineers to be sued.
Have an expert witness that can provide an opinion on the issue.
Adv and Dis of Ligitation
Adv:
1) only option to enforce rights
2) can add third parties
3) judge is free and legally trained to be a judge
4) public
5) no trial by ambush
6) rights of appeal is possible
Dis:
1) cannot choose a judge, so it may be not in their area of expertise
2) public and sets precedent (principles)
3) costly, time, harmful relationships
List the steps of litigations
1) Plead
2) Discovery with Docs and Examinations
3) Pre-trial dispostion
4) Actual Trial
5) Appeal
6) Cost
