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

1. Topic Three(1) Equity(2) ADRMark Van Hoorebeek

2. 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?

3. 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 don’t understand the law, you might go to court not appreciating that the remedy you seek is not guaranteed.

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

5. 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

6. 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.

7. 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 arefaster, 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.

8. 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,

9. 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.

10. 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.

11. 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.

12. THE SPECTRUM OF NEGOTIATION STYLES S A C R I F I C E 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 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 W A R Consideration for self Consideration for others Concession Competition Collaboration Lose/Win Win/Win Win/Lose

13. 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.

14. 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

15. 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

16. 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.

17. 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.

18. 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.

19. 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.

20. 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.

21. 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.

22. 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.

23. 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