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Chapter 4

Management and Organizational Studies 2275A/B Chapter 4: Law-Chapter 4


Department
Management and Organizational Studies
Course Code
MOS 2275A/B
Professor
Philip King
Chapter
4

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Businesses should seek to manage disputes with goals of avoiding
expensive litigation and preserving relationships.
Alternative Dispute Resolution
Cost effective, quick, commonly used, helps preserve the
relationship
May be provisional
Not applicable in insurance negotiations, settlements
Often carried out just between the parties, but may use a
lawyer, advocate, counsellor
First, investigate situation and asses the nature and extent of
the dispute
"Apology legislation" in certain provinces allows remorse
without admitting culpability
Willingness of participants to compromise
Nature and significance of the dispute
Effectiveness of those involved
Success depends on:
Binding
Release: Agreement where a party agrees to relinquish past,
present, and future claims arising from a certain event
Negotiation: A process of deliberation and discussion intended to
reach a mutually acceptable resolution to a dispute.
Less expensive, quicker
Private and confidential
Preserves relationships
Tailored to parties
More successful if parties are willing to compromise
Does not come up with a solution
Mediator manages process, organizes discussion, clears up
misunderstandings, and reduces tension
Settlement agreement
Mediation: Negotiation with the assistance of an impartial
mediator
Tailored to dispute; cheaper, faster than litigation; private
Very useful for commercial/business disputes
Usually included as a provision in the contract terms
Subject to arbitration legislation in relevant jurisdictions
Usually decisions are binding and final
The norm in international contracts
Arbitration: Dispute resolution involving an arbitrator who listens
to the parties' dispute and makes a binding ruling on the dispute
The Litigation Process
Litigation arises when one party brings legal action against the
other.
Plaintiff (Claimant): Party that initiates the lawsuit.
Defendant: Party being sued.
Drain on corporate resources, unfavourable press, often very
time-consuming, etc.
Litigation is a last resort, as it is expensive and hostile.
Litigation is private (civil) and government bears no cost
Limitation period rules provide a strong incentive for plaintiffs to
advance their claims in reasonable time to prevent plaintiffs from
advancing old claims in which evidence has been lost, providing
defendants with a time after which threat of litigation has passed.
Exchange of the formal documents outlining the basis of
the suit.
Formal document that initiates litigation by setting
out plaintiff's allegations against defendant
Initiated by the plaintiff, who prepares a document
containing the allegations supporting their claim
Filed at court office and served to defendant
Does not include evidence, but rather the key points
Short time for the defendant to respond; failure to do so
is equivalent to admitting the claim
Defendant will likely prepare a formal response to the
allegations (i.e. a defense)
Defendant may also file a counter-claim: claim by the
defendant against the plaintiff
Pleadings1.
Documents, oral testimony, expert reports, e-
discovery
Process of disclosing evidence to support the claims in a
lawsuit
Time frame is undefined and subjective to provincial
initiatives such as required mediation
Discovery2.
Usually just the judge, but jury may also be present
Formal hearing before a judge resulting in a binding
decision
Must only prove that it is more likely than not;
"proving the case on the balance of probabilities"
Burden of proof falls on the plaintiff, who must introduce
evidence
Defendant may challenge witnesses and documents and
introduce its own account of events
Parties make submissions about rules and
precedents
Judge considers law and application
Which party, why, and appropriate compensation
Judge comes to a decision
Costs are awarded on a predetermined scale and
usually fail to cover the actual amount of legal fees
incurred over the litigation period
"Solicitor and client costs" are the full expense of all
legal fees incurred and may be granted in
exceptional cases
Any monetary award includes the basic amount of claim
and interest and sometimes legal fees
Trial and Decision3.
Winner enforces judgement with the help of the court
Judgement debtor: Loser of the case
Court officials may seize and sell property in order to
satisfy debts; limited if it is a person who is the debtor
and not a corporate entity
Judgement is valid for 20 years and can be extended
Success is limited
Not facts of the case, only application of the law
Appeals must be initiated within 30 days of judgement
Enforcement4.
Stages of a Lawsuit
Chapter(4(
Tuesday,* October* 3,*2017
9:25* PM
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