Section 8 - Disputes Resolution Flashcards
three types of disputes
- civil
- criminal
- administrative
civil disputes: parties
parties are all private
- private vs private
- legal entity vs legal entity
civil disputes: subjects
civil disputes are about private rights and remedies related to PROPERTY, FAMILY and COMMERCE matters
Types of civil disputes: Family law, defamation, trespass, breach of contract/breach of an obligations, wills and inheritance, negligence, nuisance
Which is the main example of civil disp in the business world?
breach of contract, liability in tort or disputes with employees
civil disp : possible outcomes
- DECLARATORY JUDGEMENTS (invalidity of acts)
- ORDERS (to pay, to leave, delivery)
- judgements regarding a new legal status (ex. transfer of property)
civil disp: result
usually the individual at fault is punished by paying the plaintiff a sum determined by the judge
civil disp: who decides
a judge presides over the case and determines guilt. A civil trial can have a jury if either side requests one
criminal disputes: parties
state vs individual (private nature person)
but through jurisdictions also companies and partnerships can be responsible for criminal offenses
criminal disputes: results
fine, jail time, probation or execution
criminal disputes: subjects
criminal offenses (actions or omissions)
criminal disputes: who decides
a jury under the supervision of a judge
administrative disp: who
private party vs public body
administrative disp: results
SAME AS CIVIL ( declaratory judgement, orders, judgements attributing new legal status)
administrative disp: subjects
remedies against act and decisions of public body (ex. authorizations, permits, procurement agreements)
4 dispute resolution mechanisms
Amicably
Mediation
Litigation
Arbitration
amicably resolution
the PARTIES, also through previously regulated negotiations (“conciliation process”) try – on their own – to reach a mutually amicable settlement agreement
mediation resolution
A NEUTRAL INTERMEDIARY, with NO power to impose a decision, tries to help the parties reach a mutually amicable settlement agreement.
Mediation is an amicable negotiation overseen by a professional mediator
litigation resolution
a government-operated court, presided over by a government-employee judge, imposes a decision
arbitration
a private court, presided over by a private judge called an arbitrator, imposes a decision
which is the default option for dispute resolution?
LITIGATION is the the default option,
alternatively, if the parties CONSENT to it, they can pursue mediation or arbitration (called ADR – Alternative Dispute Resolutions)
3 main aspects of mediation
- neutral third party
- non binding discussions
- focus on mutual agreement
4 main aspects of arbitration
- binding decisions
- appointed arbitrators
- formalized process with rules and evidence
- limited rights to appeal
3 main aspects of litigation
- courtroom
- juridicial determinations
- public record proceeding
main difference between mediation VS litigation and arbitration
Litigation & Arbitration are directed to impose a decision BASED ON THE LAW -> This means that the decision reaches conclusions about what the law says about a specific set of facts.
In mediation, the settlement is the result of the negotiation between the parties and it is totally independent/autonomous from what the fact actually are and what the law would say about them.
