2/25/2019 Breach of Contracts Alternative Disputes Resolutions Legal English Course 2008/09 Prof. Rossana Buzzi

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. 2/25/2019

Introduction to ADR - Alternative Disputes Resolution (ADR) refers to a variety of methods of resolving commercial disputes outside government judicial process, so called litigations. 2/25/2019

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 2/25/2019

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 2/25/2019

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 2/25/2019

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 2/25/2019

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. 2/25/2019

Arbitration Arbitration retains all of the advantages of ADR relative to litigation: Speed, less costly, and confidential. 2/25/2019

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 2/25/2019

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 2/25/2019

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 2/25/2019