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Chapter 3

Management and Organizational Studies 2275A/B Chapter Notes - Chapter 3: Alternative Dispute Resolution, Privative, Certiorari


Department
Management and Organizational Studies
Course Code
MOS 2275A/B
Professor
Susan Toth
Chapter
3

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The Resolution of Disputes: The Courts and
Alternative Litigation
Alternative To Court Action
Alternative Dispute Resolution (ADR): Any strategy that is used as a substitute for
court
There are three main approaches
1. Negotiation
-When the decision making is left in the hands of the disputing parties to work out for
themselves
2. Mediation:
-When a neutral third party assists in coming to a resolution on their own
3. Arbitration:
-When a third party makes a binding decision on behalf of the two parties
I. Advantages if ADR Versus Litigation
ADR gives the people involved much more control over the situation
Fewer procedural issues cause less delays if litigation is avoid
Lengthy court battles can also cause a distraction amongst the parties companies that
are involved
Faster resolutions, fewer parties with fewer lawyers makes things more simple, saving
significant cost for both sides, and keeping the information private to avoid bad
publicity are also reasons ADRs are better options that litigations
Good relationships between parties can also be maintain through ADR
ADR is also available for companies internationally as well as internally
II. Disadvantages of ADR Versus Litigation
ADR cannot ensure a fair hearing for both sides
Courts have powers to demand information, ADR hearings do not
In ADR there are no protections against one party just out powering the other
Litigation because it is public, is an effective deterrent from the same bad behaviour
happening again
ADR decisions are not appealable (kind of are appealable in the case of a arbitration)
III. ADR Mechanisms
A. Negotiation
Should always be the first attempt at a ADR or even before litigation
Either side can withdraw from a negation at any time
Representatives of parties may negotiate on their behalf
Lawyers are good negotiators as long as they are skilled at it and aren't just litigators
!1
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B. Mediation
When a neutral third party facilitates communication but does not make a decision
Mediator finds the common ground between the two parties and ensures both sides
are equally heard
Mediators are trained and are just randoms
Mediation works well when the information being discussed is highly confidential
Both sides need to be involved positively, if blame needs to be handed out or
something of that nature, a meditation likely wont get the job done
Successful mediation requires balance of power and a willingness to act in good faith
C. Arbitration
Arbitration is sometimes optional, but in the case of labour disputes, is mandated by a
statute
Arbitration is commonly used to resolves international trade disagreements
The process determined by the parties involved must be fair for both sides
Evidence is presented and cases are summarized for the arbitrator
Decisions can not be appealed, but the process can be overlooked by a court
The decisions that is made by the third party is binding over the other two parties
Mandatory arbitration is more common now
It is much like a litigation but it tends to be cheeper, quicker and much more private
Little certainty or predictability, precedents are also not binding
Typically types of ADR are mixed, it is not always one or the other
Online Dispute Resolutions (ODR) are also being used, they are very cost effective
and will eventually be useable by consumers
British Columbia as ODR’s in a statute that make it an option for small claims and
condemnable disputes
IV. The Courts
Canadian courts are open to the public
-The principle that for justice to be done it has to be seen
-Unless the information is under the helm of national security, then they have in-
camera hearings, so things can be reviewed afterwards
-In cases of sexual assault or crimes against children, the trial is public but names are
not released
Judges adjudicate civil trails and chooses between the two positions present and
makes a reasonable decisions based on the fact him or her thinks there was over a
50% chance of that happening
!2
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Criminal proceedings must be decided without reasonable doubt and can not be made
based on probabilities
The Criminal Code includes all things a person can be charged criminally with,
however there is a much larger scope of things the Crown can prosecute for
V. Trial Courts of the Province
There are also specific courts in some provinces that deal with wills and estates,
these courts are called surrogate or probate courts
I. Recent Developments
Drug treatment courts are being put inlace with he intention of getting addicts help
instead of incarcerating them
Domestic violence courts are also becoming more used because they give
counselling to first time offenders, prosecute the repeat offenders and give support to
victims
Family courts are starting to get in most provinces, these courts only deal with family
matters and therefore have judges that are specialized in these matters
Mental health courts give mentally ill accused patients the opportunity to serve their
time for their crime in treatment facilities to properly help them deal with their issues
Nunavut Court of Justice: Judges are given power of both superior trial courts and
provincial courts so they can hear any case, they also travel around hearing these
cases
Sentencing Circles: Used primarily at the provincial court level for cases involving
aboriginal offenders and victims
-Judges are not minded but the results of these courts
!3
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