Breach of Contracts Alternative Disputes Resolutions Legal English Course 2008/09

1. Breach of ContractsAlternative Disputes Resolutions Legal English Course 2008/09 Prof. Rossana Buzzi

2. Breach of Contracts • A Breach of Contract is the failure, without legal excuse, of one party to perform as stated in the contract entered with the other party. • When a breach of contracts occurs, then the non-breaching party can either ask for performance or collect damages because of the breach.

3. Introduction to ADR - Alternative Disputes Resolution (ADR) refers to a variety of methods of resolving commercial disputes outside government judicial process, so called litigations.

4. Market Alternatives to Litigation - From a business perspective, court litigation is too risky and uncertain • Alternative Dispute Resolution (ADR) is • Quicker, cheaper and much more private • In international contracts and in cyberspace, ADR is especially prevalent because of the added uncertainty of operating in those market settings • ADR is often divided between negotiations, mediation, and arbitration

5. Negotiations and Settlements • Most legal disputes are negotiated and settled • Attorneys are trained at skillful negotiations without becoming emotional • Settlements, often negotiated by attorneys, are • private and • not an admission of liability • Positions taken during settlement negotiations by each party cannot be used as evidence in court if negotiations break down and the parties go to court • Many firms have settled disputes that they should have taken to court

6. Structured and Assisted Settlement Negotiations • Structured settlement negotiations are designed to give the parties a reality check when a lawsuit is likely • These procedures take place in B to B disputes - Assisted Settlement Negotiations confidential • The parties agree to exchange information • Evidence is presented in front of a neutral third party whose decision is non-binding, but influential. Note that the neutral third party may do some mediation during and after the mini-trial in order to obtain a settlement

7. Mediation • In mediation there is neutral third party who tries to get both of the parties to agree on a settlement • Mediators do not have the power to impose a verdict like an arbitrator • Mediation often results in greater positive feelings towards the other party and the process because there is no winner or loser • Mediators need not be licensed or attorneys, but often mediators are attorneys • Although traditionally used in labor disputes, mediation is increasingly being used in divorce, contract disputes and by government regulatory officials

8. Arbitration • Unlike mediation, an arbitrator has the power to impose a verdict • Arbitration often takes place because the parties in a contract agree to arbitrate rather than litigate • In some contracts there is a requirement to mediate first, but if that does not work, then the dispute is arbitrated • Arbitration agreements in contracts are becoming increasingly prevalent: employment contracts, brokerage agreements, franchises, and many others.

9. Arbitration • Arbitration retains all of the advantages of ADR relative to litigation: • Speed, less costly, and confidential.

10. Arbitration Procedure • Procedure in arbitration is less formalized than civil procedure in court litigation • The arbitration agreement will usually name the procedure for selecting the arbitrator • Most arbitrators have a specialty • The pleadings in arbitration are called the submission-- • Plaintiff is required to state what the dispute is about and the def. is required to respond

11. Arbitration Procedure - In arbitration, a hearing is equivalent to a trial in court litigation • Again, in arbitration there tends to be less formality • The parties can agree on procedures to cut down and time and expense • Arbitration is not open to the public • There is less variance in damage awards relative to juries • An award in arbitration is equivalent to winning a civil case • The decision to award the complaining party normally occurs quickly and is not accompanied by an opinion

12. Appeals to Courts • Normally decisions of arbitrators are not appealable, but there are exceptions • Lack of consent to the arbitration agreement is another ground for appeal • Asking a party to sign an agreement that calls for arbitration right before a medical operation provides grounds necessary to contest whether consent was voluntarily obtained • Statutes that do not allow for arbitration It is illegal for a party to waive their rights under a statute that states rights cannot be waived by an arbitration agr. • An award can be contested if the award was the result of • Fraud or corruption, arbitrator guilty of gross procedural error