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LITIGATION (GOING TO COURT)


Definition: Litigation is the use of the courts and civil justice system to resolve legal controversies.
Litigation can be used to compel opposing party to participate in the solution.
The Process: Litigation is begun by filing a lawsuit in a court. Specific rules of procedure, discovery and
presentation of evidence must be followed. The attorney for the other side will want to take your
deposition to learn more about the facts as you see them and your position in the case. There can be a
number of court appearances by you and/or your lawyer. If the parties cannot agree how to settle the
case, either the judge or a jury will decide the dispute for you through a trial.
A trial is a formal judicial proceeding allowing full examination and determination of all the issues
between the parties with each side presenting its case to either a jury or a judge. The decision is made by
applying the facts of the case to the applicable law. That verdict or decision can conclude the litigation
process and be enforceable; however, if appropriate, the loser can appeal the decision to a higher court. In
some cases, the losing party may have to pay the costs of the lawsuit and may have to pay the other
partys attorney fees.
Characteristics of Litigation:

Involuntary - a defendant must participate (no choice)

Formal and structured rules of evidence and procedure

Each party has the opportunity to present its evidence and argument and cross-examine the other
side - there are procedural safeguards

Public - court proceedings and records are open

The decision is based on the law

The decision can be final and binding

Right of appeal exists

Losing party may pay costs


SOURCE: http://www.okbar.org/public/brochures/methodsforresolvingconflictsanddisputes.aspx

ADJUDICATION is independent, less formal than arbitration and is usually free to use. An adjudicator
will look at the written evidence you and the trader send in and make a decision. The adjudicator is
usually an expert in the area you are complaining about and should be approved by the Chartered
Institute of Arbitrators (CIArb).
Source: https://www.citizensadvice.org.uk/consumer/alternative-dispute-resolution/settling-out-ofcourt/using-alternative-dispute-resolution-adr/

Adjudication involves anindependent third party considering the claims of both sides and making a
decision. The adjudicator isusually an expert in the subject matter in dispute.Adjudicators are not bound
by the rules of litigationor arbitration. Their decisions are often interim ones,ie they can be finalised using
arbitration or another process. Adjudication decisions are usually bindingon both parties by prior
agreement.In relation to construction contracts, adjudication is astatutory procedure by which any party
to thecontract has a right to have a dispute decided by anadjudicator, normally used to ensure payment. It
isintended to be quicker and more cost effective thanlitigation or arbitration. The right arises by virtue of

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the Housing Grants Construction and RegenerationAct 1996.Adjudication is also sometimes used to
describe anon-specific alternative dispute resolution process inwhich a third party makes a decision as to
the bestway to resolve the dispute. In this sense,ombudsmen, arbitrators and judges are all types of
adjudicators.

ARBITRATION
(d) "Arbitration" means a voluntarydispute resolution process in which one or morearbitrators, appointe
d in accordance with theagreement of the parties, or rules promulgatedpursuant to this Act, resolve
a dispute by renderingan award (RA 9285)
What are the differences between adjudication and arbitration?
by FindLaw UK
Adjudication and arbitration are different types of dispute resolution that do not involve going to a
traditional court or using the traditional legal system.
As a result, techniques and processes such as adjudication and arbitration, as well as mediation, are often
referred to under the umbrella term of Alternative Dispute Resolution (ADR).
Adjudication is a short-term type of dispute resolution used extensively in the construction industry,
which allows party access to an adjudicator who hears the outline arguments of both sides and makes a
fast decision to allow both parties to advance quickly with their project.
Arbitration is a more formal process in which parties present their cases in front of one or more
arbitrators chosen by them. Unlike in court, the arbitrator asks the questions of witnesses and counsel,
there is no process for cross-examination.
With adjudication you can take your problem to court if you're not happy with the outcome. With
arbitration you will have to go with arbitrator's decision and you may not be able to go to court later if
you don't agree with the outcome. (https://www.citizensadvice.org.uk/consumer/alternative-disputeresolution/settling-out-of-court/using-alternative-dispute-resolution-adr/)

ARBITRATION domestic, international (see Baker Mackenzie)


International and domestic arbitrations
The first distinction to be made is between international and domestic arbitrations. Generally, an
arbitration is 'international' if the parties to the arbitration are of different nationalities or the subject
matter of the dispute involves a state other than the state in which the parties are nationals. An
international arbitration usually has no connection with the state in which the arbitration is being held,
other than the fact that it is taking place on its territory. The parties to an international dispute are usually
corporations or state entities, rather than private individuals, while domestic arbitrations involve small

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claims by individuals. Many states, recognising that different considerations apply to international
commercial arbitrations, have provided for a separate legal regime to govern arbitrations that are
international in nature, such that there is less judicial intervention in the arbitration by the courts of the
state in which the arbitration takes place.
Another difference between international and domestic arbitrations is that international arbitration
awards have very wide enforceability in many countries. This is largely attributable to the acceptance of
international treaties such as the 1958 New York Convention on the Recognition and Enforcement of
Foreign Arbitral Awards, which allows for the enforcement of arbitration awards in many major
countries, provided that the arbitration is international.
Source: http://www.lawgazette.com.sg/2001-8/Aug01-focus4.htm

NEGOTIATION

Definition: Negotiation is the most basic means of settling differences. It is back-and-forth communication
between the parties of the conflict with the goal of trying to find a solution.
The Process: You may negotiate directly with the other person. You may hire an attorney to negotiate
directly with the other side on your behalf. There are no specific procedures to follow - you can determine
your own - but it works best if all parties agree to remain calm and not talk at the same time. Depending
on your situation, you can negotiate in the board room of a big company, in an office or even in your own
living room.

Negotiation allows you to participate directly in decisions that affect you. In the most successful
negotiations, the needs of both parties are considered. A negotiated agreement can become a contract and
be enforceable.

When and How Negotiation Is Used: Most people negotiate every day. In some circumstances you may want
the help of a lawyer to help you negotiate a fair deal. Negotiation is the first method of choice for
problem-solving and trying to reach a mutually acceptable agreement. If no agreement is reached, you
may pursue any of the other options suggested here. This process can be appropriately used at any stage
of the conflict - before a lawsuit is filed, while a lawsuit is in progress, at the conclusion of a trial, even
before or after an appeal is filed.
Characteristics of Negotiation:

Voluntary

Private and confidential

Quick and inexpensive

Informal and unstructured

Parties control the process, make their own decisions and reach their own agreements (no third
party decision maker)

Negotiated agreements can be enforceable

Can result in a win-win solution

MEDIATION
Definition: Mediation is a voluntary process in which an impartial person (the mediator) helps with
communication and promotes reconciliation between the parties which will allow them to reach a
mutually acceptable agreement. Mediation often is the next step if negotiation proves unsuccessful.
The Process: The mediator manages the process and helps facilitate negotiation between the parties. A
mediator does not make a decision nor force an agreement. The parties directly participate and are
responsible for negotiating their own settlement or agreement.

At the beginning of the mediation session, the mediator will describe the process and the ground rules.
The parties or their attorneys have an opportunity to explain their view of the dispute. Mediation helps
each side better understand the others point of view. Sometimes the mediator will meet separately with
each side. Separate caucusing can help address emotional and factual issues as well as allow time for
receiving legal advice from your attorney. Mediations are generally held in the office of the mediator or
other agreed location.

Agreements can be creative. You could reach a solution that might not be available from a court of law.
For example, if you owe someone money but dont have the cash, rather than be sued and get a judgment
against you, settlement options could include trading something you have for something the other wants.
If an agreement is reached, it will generally be reduced to writing. Most people uphold a mediated
agreement because they were a part of making it. It can become a contract and be enforceable. If there is

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no agreement, you have not lost any of your rights and you can pursue other options such as arbitration
or going to trial.

When and How Mediation Is Used: When you and the other person are unable to negotiate a resolution to
your dispute by yourselves, you may seek the assistance of a mediator who will help you and the other
party explore ways of resolving your differences. You may choose to go to mediation with or without a
lawyer depending upon the type of problem you have. You may always consult with an attorney prior to
finalizing an agreement to be sure that you have made fully informed decisions and that all your rights
are protected. Sometimes mediators will suggest that you do this. Mediation can be used in most conflicts
ranging from disputes between consumers and merchants, landlords and tenants, employers and
employees, family members in such areas as divorce, child custody and visitation rights, eldercare and
probate as well as simple or complex business disputes or personal injury matters. Mediation can also be
used at any stage of the conflict such as facilitating settlements of a pending lawsuit.

Attorneys and other professionals provide private mediation for a fee. If you have an attorney, you can
work together to select a mediator of your choice. You may want a mediator who is knowledgeable about
the subject matter of your dispute. You may wish to use a for-fee mediator in the first instance or if Early
Settlement mediation has not resulted in a resolution of your dispute. You may also find mediators or
mediation services listed in the telephone directory or available on lists provided by some courts or
private professional organizations. When selecting a mediator, you should always check their credentials
and get references. Mediators qualified under the District Court Mediation Act or certified pursuant to
the Dispute Resolution Act meet statutory standards of training and experience.

Characteristics of Mediation:

Promotes communication and cooperation

Provides a basis for you to resolve disputes on your own

Voluntary, informal and flexible

Private and confidential, avoiding public disclosure of personal or business problems

Can reduce hostility and preserve ongoing relationships

Allows you to avoid the uncertainty, time, cost and stress of going to trial

Allows you to make mutually acceptable agreements tailored to meet your needs

Can result in a win-win solution

Conciliation involves building a positive relationship between the parties to a dispute. A third party or
conciliator (who may or may not be totally neutral to the interests of the parties) may be used by the
parties to help build such relationships. A conciliator may assist parties by helping to establish
communication, clarifying misperceptions, dealing with strong emotions, and building the trust
necessary for cooperative problem-solving. Some of the techniques used by conciliators include providing
for a neutral meeting place, carrying initial messages between/among the parties, reality testing
regarding perceptions or misperceptions, and affirming the parties' abilities to work together. Since a
general objective of conciliation is often to promote openness by the parties (to take the risk to begin
negotiations), this method allows parties to begin dialogues, get to know each other better, build positive
perceptions, and enhance trust. The conciliation method is often used in conjunction with other methods
such as facilitation or mediation

EARLY NEUTRAL EVALUATION (ENE)


Early Neutral Evaluation (ENE) is when disputing parties submit their case to a neutral evaluator through
a confidential "evaluation session." The neutral evaluator considers each side's position and renders an
evaluation of the case. Contracting parties can include an ENE clause in the contract, which represents
their agreement to submit to ENE in good faith to resolve any contractual disputes.
http://guides.library.harvard.edu/c.php?g=310591&p=2078483
Early Neutral Evaluation (ENE), the proceedings of which are considered confidential, encourages direct
communication between adversarial parties about possible claims and supporting evidence-particularly
important in situations where the disputants are far apart in their views on how the law applies to the
case in question or what the case is worth.
In these instances, an evaluation of the dispute that seeks to determine best and worst case alternatives
can point the way to a negotiated agreement.
(www.adr.org)

JUDICIAL DISPUTE RESOLUTION (JDR), as implemented in the Philippines, is a process by which a


judge attempts to facilitate settlement between parties undergoing litigation after a similar effort by a
courtappointed mediator has failed. Traditionally, judges have been seen as stern, aloof and impartial
dispensers of justice acting in accordance with a strict, rights-based adversarial system. The JDR program
marks a radical departure from this concept, recasting the role of judges from magistrates to mediators,
placing greater emphasis on value creation, joint problem-solving, option generation and the
improvement of the parties relationship, than on the ascertainment of the parties respective rights and
obligations. http://pmc.judiciary.gov.ph/downloads/SRC_Alternatives%20to%20Formal%20Dispute
%20Resolutions%20Mechanisms.pdf