Business Law 301 Exam 1 (mayfield fall 2009) Chapter 3 - Business Law 301 with Mayfield at University of Tennessee - Knoxville

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Litigation Considerations

Civil lawsuits filed in state or federal courts

Substantial pre-trial and trial costs

Time consuming

Formal proceedings (through attorneys with indirect involvement of the parties)

Settlement discussions often occur late in the process (after discovery)

Appeals can extend litigation beyond the trial

Collecting on judgments can be difficult

Alternative dispute resolution (ADR) is....

any means of settling a dispute outside the courtroom.

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Name the types of alternative dispute resolution.

nNegotiation

nMediation

nArbitration.

Alternatre dispute resolution can take place....

either before or after lawsuit is filed.

Advantages of Alternative Dispute Resolution are...

High success rate

Less formal and quicker process than litigation—and less expensive.

Direct involvement of the parties in crafting a solution

Confidential

Applicable for most civil matters

Sanctioned by federal and state courts

Describe a mediator. Do they impose a solution? Requirements for mediators are?

Neutral third party mediator (or “neutral”) facilitates communication between parties and guides them in a voluntary settlement process.

Mediators do not impose a solution on the parties.

Requirements for mediators

If mediation is successful, a written settlement agreement between the parties follows; if not, the parties may proceed with litigation.

Description of the process.

Describe arbitration

What is the process of arbitration?

Submission of a dispute to one or more impartial persons for a final and binding decision.

Process: submission, hearing, award

Parties may jointly select an arbitrator (or panel of arbitrators), subject to the arbitration provision in an existing contract.

Arbitration hearing is run like a trial, but with simplified rules of evidence.

An arbitrator’s decision (known as an “award”) is final and binding on the parties to the case (unless the parties have agreed to non-binding arbitration).

What are Arbitration Provisions in Contracts?

A contract may require the parties to the contract to submit all disputes to arbitration instead of litigation.

Arbitration clauses in contracts may specify choice of arbitrators and/or location of hearing, and may exclude some matters from the arbitration requirement.

Federal and state laws give courts the power to enforce arbitration agreements.

Widely used in banking, credit, brokerage, employment, and purchase agreements. Almost always used in labor union contracts.

Federal Arbitration Act reflects policy favoring arbitration...

Sec. 04: party may petition federal district court for an order compelling arbitration under an arbitration agreement.

Buckeye Check Cashing, Inc. v. Cardegna, (U.S. 2006) , p. 67.

Rule: A challenge to the validity of a contract as a whole, and not specifically to an arbitration clause contained in the contract, must be resolved by an arbitrator.

Courts generally enforce arbitration agreements contained in contracts (i.e., tell the parties to arbitrate); however, courts may invalidate or modify certain provisions if...

in consumer contracts that are oppressive for consumers.

NCR Corp. v. Korala Asoc., Ltd., (6th Cir. 2008), p. 72.

Rule: Under federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.

Mandatory arbitration clauses in employment contracts are generally enforceable.

Some courts have overturned provisions in employment contracts requiring the parties to split costs when ...

an employee cannot afford to pay arbitration costs.

If a losing party appeals an award to a court, the court will not review the merits of the case, but will only determine whether a valid award exists—and if so, the court will order the parties to comply with the award... Possible grounds for invalidating an award

Public policy and illegality.

Defects in the arbitration process.

Disadvantages of arbitration.

Court mandated mediation.

Skip sections 4, 5, 6, and 7.

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