Dispute Resolution

Question 1

There are no formal rules for mitigation, however, describe how a typical mediation process might progress.

Answer 1

-Impartial 3rd party mediator selected to facilitate negotiation between parties
-Mediator facilitates communication between the parties fairly, honestly and impartially
-Mediators do not take sides, give legal advice, or provide counseling
-A mediator assists by clarifying the issues in the dispute and identifying the underlying concerns
-Mediator may have the parties meet face to face or may shuffle back and forth between parties in separate locations
-They assist each party to understand the other party’s interests

Question 2

The term “without prejudice” is meant to promote the free exchange of information to promote a settlement. What does the term mean? Why would a contractor approach “without prejudice” with skepticism?

Answer 2

“Without prejudice” refers to the legal privilege attached to communication that is specifically used for the purposed of negotiating settlement. It restricts any such communication from being relied upon in court proceedings. Essentially, “without prejudice” communications are inadmissible.
Contractor may approach with skeptisism because they might not trust that other person will abide by the principles of “without prejudice”. They may be worried that something they say could be used against them in some way despite

Question 3

Excluding cost what is an advantage of arbitration over litigation?

Answer 3

• Time: typically a faster process because it doesn’t have the same level of procedural rules and formalities as a litigation process.
• Judges: can be selected by the parties as someone who has technical background in the area of dispute unlike litigation where you cannot select your judge. Although in litigation the judge is legally trained, they may not have technical expertise in area of dispute.
• Binding/Private: Decision is still binding in court and the process is a lot more private and confidential. Whereas in litigation the court proceedings can be open to public. So if it’s a sensitive matter or if you don’t want to expose your personal business this is better while still providing binding result.
• Relationship maintained whereas it can be harmed in litigation due to the process

Question 4

In the case of Foundation vs. UGG 1993 (BC SC) settlements were made, however there were no real winners. Explain (3 Marks)

Answer 4

Dispute cost a lot of money and time where the cost of the dispute were greater than the benefits of the settlement

Both parties had to make compromises in order to reach a settlement. No party really one since both got everything they wanted.
-It was difficult for the courts to prove who was at fault for delays
-No real winners since the money awarded for damages did not cover legal fees
-Legal fees were more than the awarded damages, and the joint liability made for no winners.