Topic Three (1) Equity (2) ADR Mark Van Hoorebeek

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Topic Three(1) Equity(2) ADRMark Van Hoorebeek
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Equity
Relevance to business?

• Imagine you have an agreement to purchase a large
  amount of leather in order to manufacture
  goods/garments.
• The seller decides to break the agreement in
  order to sell to another buyer who is prepared to
  offer even more money.
• The Common Law will recognise that the agreement
  has been broken provide you with damages
  (money) Problem?

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• What you may need is for the court to force the
  seller to honour the transaction
• Remedy Required?
• Specific Performance is an equitable remedy and
  is only available at the discretion of the court
• If you dont understand the law, you might go to
  court not appreciating that the remedy you seek
  is not guaranteed.

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Equity

• Equity acts, not according to the strict rules of
  the common law, but according to its maxims.

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The maxims of equity

• i) Equity will not suffer a wrong to be without
  a remedy
• ii) Equity follows the law
• iii) He who seeks equity must do equity
• iv) He who comes to equity must come with clean
  hands
• For instance, in Riggs v. Palmer (1889) 115 N.Y.
  506, a man who had killed his grandfather to
  receive his inheritance quicker (and for fear
  that his grandfather may change his will) lost
  all right(s) to the inheritance.
• v) Where the equities are equal the law
  prevails
• vi) Where the equities are equal the first in
  time prevails
• vii) Equity imputes an intention to fulfil an
  obligation
• viii) Equity regards as done that which ought to
  be done
• ix) Equity is equality
• x) Equity looks to the substance rather than
  the form
• xi) Delay defeats equities
• xii) Equity acts in personam
• xiii) Equity will not permit a statute to be used
  as an instrument of fraud

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Alternative Dispute Resolution (ADR)

• Courts can provide the least suitable form of
  dispute resolution.
• Detailed scientific or medical evidence can be
  problematic to present in a court as the court is
  used to hearing legal issues.

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Alternative Dispute Resolution (ADR)

• A catchall term that describes a number of
  methods used to resolve disputes out of court,
  including negotiation, conciliation, mediation
  and the many types of arbitration. The common
  denominator of all ADR methods is that they are
  faster, less formalistic, cheaper and often less
  adversarial than a court trial.
• In recent years the term Alternative Dispute
  Resolution has begun to lose favor in some
  circles and ADR has come to mean Appropriate
  Dispute Resolution. The point of this semantic
  change is to emphasize that ADR methods stand on
  their own as effective ways to resolve disputes
  and should not be seen simply as alternatives to
  a court action.

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Negotiation

• Advantages
• Simple,
• Common,
• Parties can meet with or without lawyers,
• In procedural terms, negotiation is probably the
  most flexible form of dispute resolution as it
  involves only those parties with an interest in
  the matter and their representatives, if any.
• The parties are free to shape the negotiations in
  accordance with their own needs,

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Negotiation

• Disadvantages
• A particular negotiation may have a successful
  outcome. However, parties may be of unequal power
  and the weaker party(ies) may be placed at a
  disadvantage.
• A successful negotiation requires each party to
  have a clear understanding of its negotiating
  mandate. If uncertainty exists regarding the
  limits of a party's negotiating authority, the
  party will not be able to participate effectively
  in the bargaining process.

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Negotiation

• The absence of a neutral third party can result
  in parties being unable to reach agreement as
  they be may be incapable of defining the issues
  at stake, let alone making any progress towards a
  solution.
• The absence of a neutral third party may
  encourage one party to attempt to take advantage
  of the other.

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Negotiation

• The negotiation process cannot guarantee the good
  faith or trustworthiness of any of the parties.
• Negotiation may be used as a stalling tactic to
  prevent another party from asserting its rights
  (e.g., through litigation or arbitration).
• A mediator is appointed how will help the parties
  to come to a mutually acceptable agreement.

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THE SPECTRUM OF NEGOTIATION STYLES
T H R E A T S
L I T I G A T I O N
C O E R C I O N
S U B M I S S I O N
S U R R E N D E R
S E L F D E N I A L
W A R
S A C R I F I C E
Consideration for self
Consideration for others
Concession
Competition
Collaboration
Win/Win
Win/Lose
Lose/Win
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Arbitration

• This is where the parties agree to allow a third
  party to make a decision on their dispute and is
  controlled by the Arbitration Act 1996.

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Mediation

• Advantages of Mediation
• You get to decide
• The focus is on needs and interests
• For a continuing relationship
• Mediation deals with feelings
• Higher satisfaction
• Informality
• Lower cost
• Privacy

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Mediation

• Disadvantages of Mediation
• Emotional Exhaustion 
• Difficulty in keeping objectivity
• Difficulty in achieving balance in negotiations
  for both parties
• Does it achieve the best settlement

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Tribunals

• Tribunals are outside the court system, there are
  many different kinds.
• Tribunals make an award rather than give a
  judgment. They are not absolutely bound by
  previous decisions of the tribunal, although they
  may look at previous cases for assistance in
  making their decisions. They are however bound by
  decisions of courts.

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Advantages of tribunals

• Speed - cases come to court fairly quickly many
  are dealt with within a day.
• Cost - Tribunals usually do not charge fees, each
  party usually pays their own costs. The simpler
  procedures of tribunals should mean that legal
  representation is unnecessary, so reducing costs.

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Advantages of tribunals

• Informality - This varies between different
  tribunals, as a general rule, wigs are not worn,
  the strict rules of evidence do not apply, and
  attempts are made to create an un-intimidating
  atmosphere.

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Advantages of tribunals

• Specialisation - Tribunals members already have
  expertise in the relevant subject area and
  through sitting on tribunals are able to build up
  a depth of knowledge of that area that judges in
  ordinary courts could not hope to match.

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Advantages of tribunals

• Privacy - Tribunals may, in some circumstances,
  meet in private, so that they are not obliged to
  have their problems aired in public.

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Disadvantages of Tribunals

• Lack of Openness - The fact that some tribunals
  are held in private can lead to suspicion about
  the fairness of their decisions. Reasons for
  decisions are not always given, although this has
  been strongly recommended by the Court of Appeal.

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Disadvantages of Tribunals

• Too Complex - The 1979 Royal Commission on Legal
  Services (the Benson Comm.) recommended a review
  of tribunal procedures, with a view to
  simplifying matters so that applicants could as
  far as possible represent themselves, yet if
  anything, tribunal procedures have become more
  legalistic. - Genns' research appears to confirm
  that self- representation will be very difficult
  before some tribunals and therefore better legal
  or lay representation will become even more
  necessary.

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Disadvantages of Tribunals

• Appeals There is no absolute right to appeal
  from a tribunal -such rights exist only when laid
  down by statute consequently there is no uniform
  appeals system, and some tribunals offer no
  appeal rights at all. Appeals when allowed to the
  High Court are expensive and complex.
• Unavailability of legal aid - Full civil legal
  aid is available for only a couple of tribunals