Litigation and Dispute Resolution
Civil litigation is a broad term that describes court based legal disputes under the common law system (excluding criminal liability). In civil litigation there are two parties who are having a dispute
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Alternative dispute resolution such as mediation, conciliation and arbitration.
Instead of going to court, what is the cost to do mediation or an alternative dispute resolution by hiring a lawyer?
361 views
Marc Shaffer, CEO at US DataVault
Honestly I have to agree with Phil, however, Nicole brings up a great point. Truth is there are many mitigating factors. It is always a good idea to find a mediator who has direct experience in your specific issue. And like every other service you may buy, make sure you check references to learn just how good they are at their job. That can mean a lot to you as your negotiation proceeds. Like everything else we do, it is always wise to check out our bedfellows carefully to avoid getting caught up with someone not really able to achieve the goal we need or want. Cost for this will vary widely depending on the deal you cut for the work, how extensive that work turns out to be, is it required that they travel and what are the hard costs involved. Reality is somewhere between Phil and Nicole but can be higher.
What are the factors you should consider in pursuing a court case?
453 views
Katherine Hawes, Solicitor at Digital Age Lawyers
This is a scenario that I go through with my clients all the time.
it is just as much a commercial decision as a legal one.
There are a number of factors to consider:
1. Your time and money - plus the emotional cost
2. Whether the other party has funds to pay a judgment
3. Strength if your case as opposed to the offer of settlement
Sad but true... 1 in 3 Australian marriages will end in divorce. Therefore, if you are a married business owner, this roughly equates to 1 in 3 family businesses breaking down or experiencing a...
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In part 1 of this 2-part guide you learned what mediation is and who attends. You found out what to expect at mediation and how it helps resolve conflict early on before things get out of hand. In...
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Alternative dispute resolution such as mediation, conciliation and arbitration.
You deal with varying levels of conflict in your daily life. Whether it’s a work, at home, at school or in the supermarket, not a day goes by when you are not negotiating conflict in some form or...
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When I am at networking events or social occasions I am often asked, after ten years as a litigation lawyer, why I decided to pursue mediation. As with most things in life, there are many factors...
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Does the disclaimer text inserted at the bottom of many corporate emails actually hold any legal weight? Does it actually indemnify the company if an employee uses their corporate email for...
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Katherine Hawes, Solicitor at Digital Age Lawyers
Yes a well worded disclaimer clause that is clearly stated will be enforceable. There are a number of different types of disclaimers or exclusion clauses. One type you have identified is on the bottom of emails but they are also found in most consumer contracts such as gym agreements, mobile phone contracts etc. They are enforceable as by signing those documents you are stating that you have read and understood the terms of the agreement and consent to waiving your rights. Exclusion clauses are also found in car parks, again if clearly displayed and worded will be enforceable. My advice is always make sure the clause clearly states what you are excluded, if it is vague it will be unenforceable.
In terms of indemnify the company from inappropriate - remember you are vicariously liable for the actions of your employees. That means in simple terms -- you are responsible for every idiot you employ and the actions of that idiot. However if you have a clear social media and email policy then it could be a disciplinary action against the employee.
Lisa Creffield , Founder at Videography & Writing
Thank you for your response! It was very insightful.
It's not uncommon for an internet meme to trigger a tirade against the poster, which is exactly what happened on actor and activist George Takei’s social media accounts. How George Takei chose to...
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Solicitor at Digital Age Lawyers
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Civil litigation is a broad term that describes court based legal disputes under the common law system (excluding criminal liability). In civil litigation there are two parties who are having a dispute about a set of facts or, if they are appealing, the application of the law to a set of facts. When businesses want to avoid the costly process of litigation, they may choose alternative dispute resolution instead.
A judge presides over the dispute while the parties bring submissions and evidence before the court to support their position. The court will determine which evidence is admissible and once the judge has heard all of the evidence they will make a judgment on how to apply the law. This will result in the case being handed to either the plaintiff or the defendant.
An important part of the legal system is the appeals process. If a party disagrees with the decision made by the judge, they can appeal to a higher court to argue that the lower court made an error in applying the law. Cases heard in higher courts tend to handle more significant legal decisions as they can create broader precedents for future cases.
Alternative dispute resolution (ADR) is the name given to the non-litigious options available when there is a dispute. Most often it is a term associated with the process of mediation, though it also includes conciliation and arbitration.
Mediation is a voluntary process which involves an individual (usually a lawyer) being a party to negotiations between the disputing parties. The mediator does not have the authority to make a judgment on either party, they are only there to to assist the parties in resolving the dispute. The mediated dispute is settled when the parties are satisfied and in agreement. Mediation is distinguished from a simple negotiation by the presence of a neutral party who assists in coming to an agreement.
The conciliation process also involves a third party, but they may not be so neutral. The conciliator will actively introduce options for settlement and will require the agreement be in keeping with regulatory requirements.
In arbitration, the parties agree to abide by the third party's judgement prior to commencing arbitration.
While ADR is significantly cheaper in most cases, the parties lose the protection of the courts. The courts are far more costly and complicated to navigate, but they are that way because they offer extra checks and balances in resolving the dispute. The appeals process is particularly valuable when there is a dispute in the application of the law.
Businesses require lawyers to represent them and help them build a case, which typically means significant legal fees. When settling the dispute will cost more than the amount to be settled for, businesses are unlikely to choose a litigious option. ADR offers a middle ground that can be useful in these situations.