dispute resolution and expert evidence

Question 1

four methods of dispute resolution

Answer 1

1. negotiation - voluntary
2. litigation - forced
3. arbitration - voluntary unless in a contract
4. mediation - non-binding

Question 2

negotiation and its advantages

Answer 2

• discussion aimed to resolve a dispute
• no formal rules
• best to have a skilled negotiator (lawyer)

advantages:

• parties have control
• less costly
• eliminates uncertainty

Question 3

litigation and its advantages/disadvantages

Answer 3

• use of court system to resolve disputes
• independent judge and jury to resolve issues that are in dispute

advantage:

• in good faith
• court enforces own orders

disadvantages:

• costly
• delays
• take time
• risky
• not always fair

Question 4

alternate dispute resolution (ADR)

Answer 4

process of resolving a dispute other than litigation

Question 5

pleadings

Answer 5

• documents filed in court in a lawsuit or inclined in a trial record
• include:
• • statement of claims
• • drafted by plaintiff
• • identifies parties, allegations and nature of relief sought

Question 6

counter claim

Answer 6

• statement of claim that a defendant asserts against a plaintiff
• counterclaim amounts can be larger than original claim

Question 7

third party claim

Answer 7

• a pleading setting out the claim of a defendant against a third party
• defendant wants the third party to be bound by the findings of fact

Question 8

litigation costs

Answer 8

• loser pays certain percentage of other party’s legal fee

- strong disincentive against frivolous claims

Question 9

examination for discovery

Answer 9

• oral cross-examination of a representative of opposing party

Question 10

technical evidence

Answer 10

• can simplify some evidence to help the judge understand

- technical expert to explain technical information in simple terms

Question 11

arbitration and advantages/disadvantages

Answer 11

• a private litigation or trial process in which the parties set the rules and choose the judge (arbitrator)

advantages

• less expensive
• quicker
• private
• does not have to be binding

disadvantages

• delays
• third party issues
• lacks control of judge

Question 12

four types of arbitration

Answer 12

1. mandatory binding arbitration
   - if an arbitration clause is already in the contract, disputes must be resolved through arbitration
2. voluntary arbitration
   - parties agree to arbitration after dispute has risen
   - binding process. parties whose one or more arbitrators
3. non-binding arbitration
   - arbitrator gives an advisory opinion, non-binding, non-enforceable
4. binding arbitration
   - private, less formal dispute resolution. dispute submitted to an impartial arbitrator to resolve the controversy and gives a final binding award

Question 13

mediation, process and advantages

Answer 13

• a structured interactive process where an impartial third party assists disputing parties in resolving a conflict through communication and negotiation
• assisted negotiation process

advantages
- mediator helps parties regain objectivity and make aware of the facts

Question 14

mini-trial

Answer 14

• condensed version of a trial in front of a judge alone

- judge makes a non-binding ruling and parties choose whether they want litigation

Question 15

settlement conference

Answer 15

• informal meeting or formal mediation process with a judge

Question 16

variation

Answer 16

• binding mediation

Question 17

expert witness

Answer 17

• person with skill, expertise, training, and experience who is hired to provide their opinion to the court or to an arbitration tribunal
• assists the court to understand technical and professional matter
• retained by one party but has obligation to remain neutral, factual, unbiased