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Some Highlights of Session 1 - Part 2 - Resolving Legal Disputes and More.doc

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Administrative Studies
ADMS 2610
Robert Levine

Resolving Legal Disputes and More When two or more people have a legal dispute, we say that they are parties to the dispute and what follows are the three ways in which they can attempt to resolve it: 1. Negotiation: This is usually an informal process where the people on each side of the dispute (i.e. the parties to the dispute) either themselves, together with a representative (usually a lawyer) sit down together and attempt to hammer out a solution acceptable to all. This process will normally involve compromise on the part of one or both of the parties and there is little cost involved, other than the time invested in the negotiations. 2. Alternative Dispute Resolution: When negotiation fails or is not attempted, often the parties will resort to one of two dispute resolution mechanisms to resolve a legal dispute. The first is called Mediation, which is a meeting of the parties to the legal dispute before a Mediator who is normally an expert in the area of law involved and agreed on in advance by the parties to the dispute. The job of the Mediator is to try to help the parties resolve the dispute and usually his process involves first, the mediator reviewing materials prepared by each party outlining their position. These materials are put into something called a Mediation Brief and the Mediator reviews these briefs prior to the Mediation. At the Mediation the parties must be present and usually have a representative (generally a lawyer) with them. The Mediator then gives his or her overall assessment of the matter advising the parties of the law and which of them has the better position and listens to each side. This is followed by the Mediator meeting separately with each party and representative and discussing or suggesting different ways of settling the dispute. Often the Mediator will go back and forth between the parties a number of times carrying alternative ways of resolving the dispute. It must be understood that in the Mediation process, the Mediator does not make a decision that binds the parties, rather he or she will only try different ways of helping the parties resolve the dispute. It should also be understood that prior to the Mediation, the parties to the dispute agree that anything disclosed or said at the Mediation remains private and cannot subsequently be used as evidence if the matter goes to court. As to the cost of the Mediation, the parties usually agree that each will pay a proportionate share of the Mediator’s fees for review of the materials and conducting the Mediation. Thus, if there are two parties, each agrees to pay half. If there are three parties, each pays a third and etc…. However, as regards methods for resolving disputes, Mediation is relatively inexpensive, ranging from perhaps $ 500.00 to not more than $5,000.00 for a legal dispute that is not complex in nature, and increasing where the dispute becomes complex or where there are many parties to it. A second form of dispute resolution is Arbitration. Unlike Mediation, Arbitration results in a decision that usually binds the parties. It is presided over by an Arbitrator usually agreed on by the parties: that is, the parties agree to submit to the Arbitration and be bound by the Arbitrator’s decision, and the parties let the Arbitrator decide the dispute. Although evidence may be led in an Arbitration, the procedure is less formal than the 2 procedure involved in a law suit using the Court process. A brief of materials (an Arbitration Brief) is prepared by each party for review by the Arbitrator who may then hear evidence from each party and their respective positions based on existing law in the area. The Arbitrator may also refer to the law which applies to the legal dispute and will then render a decision which is binding on the parties. Generally, there is no appeal of the Arbitrator’s decision, unless the Arbitrator does something that he did not have the authority to do which is simply another way of saying that the Arbitrator exceeded his jurisdiction. Again, in the scheme of things, like a Mediation, the cost of an Arbitration is often shared, and a normal Arbitration will not cost much more than a normal Mediation. It should be noted that quite often today, sophisticated agreements between parties contain provisions for resolution of many kinds of disputes using the Mediation process and in such agreements, it is less common to find provisions for Arbitration. However, in international legal disputes, Arbitration is the common method of dispute resolution. 3. Litigation: When, negation or mediation fail to resolve a legal dispute, the final method used to resolve it is a law suit, or litigation, which is the process whereby the parties look to the courts and the procedure used in court to resolve the legal dispute. Another synonym for “law suit” and “litigation” is “action at law” (commonly called an “action”). The party who begins or initiates the action/law suit is called the plaintiff. The party who defends the law suit brought by the plaintiff is called the defendant. Depending on the nature of the law suit, there can be multiple/many plaintiffs and multiple/many defendants. Generally we refer to the plaintiff(s) and defendant(s) as the parties to the law suit or litigation or action. There are also other parties who may become involved in the law suit, particularly where a defendant feels that he/she/it is not responsible to the plaintiff, but someone else is. This someone else is called a third party and, in a proper case, a third party can bring in a fourth party and etc…. The Normal Steps in an Action where the amount claimed is more than 50,000.00 or the procedural rules of court require it: 1. Plaintiff commences the action with something called a Statement of Claim. This is a legal document usually prepared by the plaintiff’s lawyer, which sets out the names of the plaintiff and defendant and an other party(ies) - (the parties to the law suit); the relief sought by the plaintiff from the court; and a statement, in paragraph form, of the circumstances that give rise to and comprise the plaintiff’s claim. 2. Plaintiff’s lawyer delivers the statement of claim on the defendant(s). This process is called service on the defendant of the statement of claim. 3. The defendant’s lawyer prepares a Statement of Defence and delivers it to (serves it on) the plaintiff. 3 Note: The statement of claim and statement of defence, are called pleadings and delivery of pleadings to the opposite party(ies) is the first real step in the litigation process or an action, although there are other forms of pleading as well.) 4. These days, within a certain period of time after the defendant delivers the statement of defence, the parties must go to a Mediation in an attempt to settle/resolve the action 5. Once the pleadings have been delivered, and if a settlement is not effected by Mediation then the next step is usually a process called Examinations for Discoveries or Discovery and it takes two forms. The first is documentary discovery in which each party produces the documents in that party’s possession which that party believes are relevant to that party’s claim or defence. The second form of discovery is oral examinations usually held in a special office, with a court reporter present to record the oral examination and transcribe it or set it out in words into something called transcripts for review by the parties, their lawyers and the court. These transcripts or a portion of them will normally be used and referred to at the trial of the action. In oral examination for discovery, the lawyer for one party gets to examine and ask questions of the other party. So, for example, the plaintiff’s lawyer has the right to examine the defendant on anything relevant to the litigation and similarly, the defendant’s lawyer has the right to examine the plaintiff. The purpose of the Discovery process is to enable each side/party to know the other parties case/position. 6. Once discoveries are complete, the action is made ready for trial by a process called setting the action down for trial. 7. The next stage is something called a Pretrial Conference. This is a conference held before a judge of the court in which the action has been brought, but not the judge who will hear the trial. For example, if the action has been brought in the Ontario Superior Court of Justice, a judge of that court will preside over the Pre-trial Conference, but will not hear the trial, which will be heard by a different judge of the Superior Court o
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