Please enable JavaScript.
Coggle requires JavaScript to display documents.
Resolution of commercial disputes - Coggle Diagram
Resolution of commercial disputes
Alternative Dispute Resolution
Negotiation
The company part of the dispute sit down and try to resolve it. If a decision can't be reached an third party mediator can be appointed to oversee the proceedings
Advantages:
Flexible: parties can shape negotiation like they will
Uncertainty: Not sure if a decision will be reached (But success is more realistic)
Voluntary: No one is required to attend negotiation
No third Party: No need for a mediator
Disadvantages
Unequal power: Weaker party at a disadvantage
No third party: Process may be chaotic
No trust: Can't guarantee good faith
Stalling Party stall to disrupt the other company asserting its rights
Mediation
When a dispute can't be resolved without a third party a mediator is appointed to oversee the process and help where possible. He can't make a decision on the outcome but only helps to let companies do everything in a orderly and effective way
Advantages
Quickly: Process is fast
Independency: Mediator is independent from both companies
Involvement: Mediator only to guide process not make decision
Preserve Relationship: Relationship is preserved between companies
Disadvantages
Not Compulsory
Agreement: All parties must agree to the result
Information: Difficult if parties withhold information
Withdrawal: Any party can withdraw when they want
Arbitration
This is where the 2 companies appoint a arbitrator depending on expertise, skill and legal knowledge. The arbitrator listen to the companies involved points and make a decision based on the comments.. If a binding decision is possible it is agreed to beforehand.
Advantages
Fairness: Both parties agree on a arbitrator
Timeliness: Much quicker then awaiting a trial date
Cost: Cheaper because of no legal preparation
Confidentiality: More private
Finality: No appeal available so decision is final after arbitration
Disadvantages
No Appeals: Arbitration decision is final
Cost: Minimal money involved so still expensive
Rules of Evidence: Arbitrators can use any evidence given to them
Limited Discovery: all parties lose cost-saving advantage of limited discovery
Characteristics
Informality: More informal than judicial process
Application of Equity: Application of equity rather than law
Direct Participation and Communication between Disputants: More involvement in process
Conflict of Laws
Jurisdiction
When there is two or more jurisdictions applicable to the certain case and have different opinions on the matter that causes conflict. a decision has to be made what jurisdiction will listen to the case. usually the jurisdiction that is closest to home will hear the case to make traveling aasier but the other jurisdiction should be taken into account of their rules
Rules regaring when it is appropaite to hear a case
This is the decision of the jurisdiction if they see it fit to hear a hearing according to what is disputed and may leave it to another jurisdiction to handle the hearing. For instance the geographical area is a problem
foreign judgements
This is the enforcement of one jurisdiction in a foreign jurisdiction and then is used to have hearing and both jurisdictions has to be met to give an final judgement.
Litigation
Characteristics
Judicial proceeding in a court to determine rights, duties and obligation of the parties that is part of the dispute
Form of Outcome
Appeal
Indicators for choice:
Cost minimization
Confidentiality
Judicial intervention
Extent of disputes costs etc.
Operational Requirement:
Technical Issues
Time Issues
Financial Issues
Summary of Procedures
Role of neutral
Disadvantages
Longer time frame: Cases can take multiple years to come to a decision
Judgement subject to appeal: Appeal can be negative because the process has to be done again
Costly: Can be expensive with all the legal fees that has to be paid
Damaging Relationship: Because of the battle the relationship has lasting damage
Public Forum: Public will know what is happening
Advantages
Public Record: Conducted through courts and become part of the public record. Final judgement is a clear line in the sand
Cooperation: Every company has to participate in proceedings
Precedent Value: Lasting benefit of litigation because of a form of precedent
Appeals: When you lose you can apply for an appeal hearing
Evidence: To decide what can be used as evidence is a lot stricter but is no problem if you have a strong case
References
Allardyce & Partners. 2021. Alternative Dispute Resolution - What Is Alternative Dispute Resolution?. [online] Available at:
http://www.allardyce.co.za/alternative-dispute-resolution/
[Accessed 30 September 2021].
Arbitration?, W., 2021. What Are the Advantages and Disadvantages of Arbitration?. [online] UpCounsel. Available at:
https://www.upcounsel.com/what-are-the-advantages-and-disadvantages-of-arbitration#:~:text=Disadvantages%20of%20Arbitration%20What%20are%20the%20advantages%20and,This%20can%20raise%20questions%20of%20fairness%20and%20transparency
[Accessed 30 September 2021].
Jones, D., 2021. 7 Advantages of Litigation in Dispute Resolution - Glaisyers. [online] Glaisyers. Available at:
https://www.glaisyers.com/advantages-of-litigation-in-dispute-resolution/#:~:text=1%20Public%20Record.%20One%20of%20the%20main%20advantages,%28whether%20you%20like%20the%20result%20is%2C%20of%20
[Accessed 30 September 2021].
Drm.hk. 2021. General Characteristics of Litigation. [online] Available at:
http://drm.hk/html/t3_2_2.phtml
[Accessed 30 September 2021].
[online] Available at:
https://www.ebookskenya.com/advantages-and-disadvantages-of-negotiation-as-a-form-of-alternative-dispute-resolution/#:~:text=Advantages%20of%20negotiation%3B-%201%20In%20procedural%20terms%2C%20%28negotiation,expensive%20for%20the%20parties%20and%20may%20reduce%20delays
[Accessed 30 September 2021].
Systech-int.com. 2021. Mediation – advantages and disadvantages. [online] Available at:
https://www.systech-int.com/insights/thoughts/mediation-advantages-and-disadvantages
[Accessed 30 September 2021].
LLP, R., 2021. The Pros and Cons of Litigation - Pacific Advisors. [online] Pacific Advisors. Available at:
https://pacificadvisors.ca/the-pros-and-cons-of-litigation/
[Accessed 30 September 2021].
Encyclopedia Britannica. 2021. Conflict of laws - Jurisdiction. [online] Available at:
https://www.britannica.com/topic/conflict-of-laws/Jurisdiction
[Accessed 30 September 2021].