BUSI 3005 Chapter 4

Negotiation

Problem solving process where parties discuss their differences and attempt to reach a mutually agreeable solution.

• Doesn’t require lawyers (who make it more complicated)

• Unstructured

• Informal

• Less expensive

• Happen in business via contracts

Mediation

neutral person (mediator) assists the parties in reaching dispute settlement

• Parties choose mediator

• Used for most disputes

• Mediator doesn’t make decision, they facilitate discussions that lead to voluntary resolutions

• High success rate, both sides must be ready to compromise

• Less expensive and quicker

• Can be confidential

• Preserves relationship

Arbitration

3rd person(s), called arbitrator, appointed by parties makes decision. Similar to litigation since it involves parties making submissions and resolution is made outside party’s control

• Needs consent

• Common in business

• Avoids conflicts of laws (neutral jurisdiction)

• Decision is binding

When is arbitration used

Works well for commercial, international, and business disputes as they can select the arbitrator and information is private

Private (Civil) litigation

• Happens in Supreme or Provincial Court (only if <$25,000 for small claims)

• When someone sues someone else

• If there’s a breach of contract, someone is held liable

• Plaintiff vs defendant

• Brought by person claiming loss at their own cost

• No legal aid (pay for own lawyers)

• Some provinces have smaller claims courts that hear smaller lawsuits

Considerations before suing

• Are there further steps available and how long are they?

• Can businesses devote their resources to proceed with dispute?

• Will it affect reputation?

• Is relationship with other side valuable and will it be harmed?

• Legal fees and company time

• Worthwhile stakes beyond dispute

• Chances of winning

• Do other side gave assets?

• Access to key witnesses

Criminal litigation

• Happen in Supreme Court

• Criminal charges

• Someone is guilty

• Crown vs defendant/accused

Litigation

• When 2 parties brings legal action against another

• Should be last resort when other methods fail

Limitation period

• Time period specified by legislation for commencing legal action

• Vary depending on lawsuit nature and province

• Right to sue is lost after the applicable time period ends

Lawsuit stages

1. Pleadings

2. Discovery

3. Attempts of ADR

4. Trial and decision

5. Enforcement

Litigation process

1. Burden of proof

2. Pleadings

3. Counterclaim

4. Discovery

Burden of proof (litigation)

The obligation of the plaintiff to prove its case

• Criminal law: beyond reasonable doubt (as close to certainty)

• Civil law: balance of probabilities (more likely than not)

Apology Act

Doesn’t hold someone liable for saying sorry