- The benefits of alternative dispute resolution for business
Alternative dispute resolution for businesses are more viable and yield faster results than litigation. When disputing parties opt for alternative dispute resolution, they are flexible in choosing the law they would like to apply in solving their dispute, how much time they want to solve their dispute, if they want any third parties to help them in the solution of their disputes. In this place, they would like to solve their dispute. Therefore, alternative dispute resolution is cost-effective, allows for flexibility, is time-effective as disputes are solved when the parties will; parties to a dispute have control over the dispute resolution process and results compared to litigation. Lastly, parties can preserve their business relationship through ADR compared to litigation (Mnookin, 1998).
- What are the four types of alternative dispute resolutions?
Alternative dispute resolution is a way of solution of disputes without litigation. The four types of alternative dispute resolution mechanisms are negotiation, mediation, arbitration, and facilitation. In facilitation, a neutral third party helps the disputing parties to resolve their dispute. It can be done through email, written correspondence, and telephone contacts. Under mediation, a neutral and impartial mediator listens to both parties and helps them reach a mutually acceptable resolution. Arbitration is the most formal of all mechanisms. The arbitrator hears both parties and then decides the dispute outcome. Some formal arbitrations are binding on the parties; the parties must adhere to the arbitral award. Lastly, in negotiation, the parties solve the dispute amicably within themselves (Newman, 2020).
- What constitutes a frivolous lawsuit in tort/civil law?
Frivolous suits are suits that lack merit and good faith. The plaintiff’s allegations or claims do not amount to a good cause of action. It has no basis in fact or law. Some frivolous suits may be filed by persons suffering mental illness and others by seeking revenge, seeking to harass the defendant, and generating media attention. When a frivolous lawsuit is filed, the judge may impose fines on the plaintiff’s lawyer, or the defendant can sue the plaintiff for malicious prosecution (Enjuris, 2019).
- Contracting with a minor
The general rule is, if a contract is formed between a minor and an adult, the minor is not bound, but the person contracting with them will be bound. Some contracts involving minors are expressly prohibited, i.e., the sale of alcoholic drinks. Some contracts with minors are valid, i.e., a contract for necessaries. Necessaries are defined as “goods suitable to the condition in life of a person.” The minor is bound to pay a reasonable price if necessaries are supplied. Contracts for bank regulations, taxes, contracts with the military, and penalties cannot be avoided even if a minor is involved. Secondly, contracts for the minor’s benefits are valid, i.e., contracts of service, apprenticeship, or education (Columbia Law Review).
- Restraints of Trade clauses
Restraint of trade clauses is designed in contracts to prevent unfair competition after the expiry of an employment contract. They state that the employee will get hold of trade secrets or valuable information about the business or employment entity that is not generally known to the public. They restrict the person from engaging in a similar business as their employee within a specified period. Prima facie, those clauses are unlawful as they are anti-competitive. However, they need to be carefully construed so that they may be as reasonable as possible. Other restraints of trade clauses are based on geographical limitations; for instance, a person will be restricted from setting up a business in a particular town or within a particular radius. Such clauses should be reasonable, and their enforceability depends on reasonableness (Fell, 2014).
- Breach and remedies
A contract is considered a breach when one of the parties to the contract does not adhere to the contract terms. The breaching party may be required to remedy the non-breaching party by ‘returning them to their position before the agreement or payment of damages. The available remedies for breach of contract vary, and they depend on the extent of the breach and what the non-breaching party is seeking. They include specific performance, restitution, rescission, compensatory, punitive, special, and general damages. Compensatory damages cover the loss incurred by the non-breaching party, while general damages cover the loss incurred by contract breach. Punitive damages are awarded to punish the breaching party. In contrast, special damages are damages incurred by the breach of contract because of special circumstances or conditions that are not ordinarily predictable. They include payment of hospital bills and other related special circumstances. Restitution is an act of restoring the plaintiff to a position he or she was before the breach of the contract. Rescission is the voiding of a contract by a court that does not recognize it as legally binding (Judicial Education Center, 2021.
Mnookin R. (1998), Alternative Dispute Resolution
Newman M. (2020, Forms of Alternative Dispute Resolution, https://millerlawpc.com/alternative-dispute-resolution/
Enjuris (2019), What’s a Frivolous Lawsuit? https://www.enjuris.com/blog/questions/frivolous-lawsuits/
Columbia Law Review (1948), Statutory Problem in the Law of Minor’s Contracts https://www.jstor.org/stable/1118483?Search=yes&resultItemClick=true&searchText=contracting+with+minors&searchUri=%2Faction%2FdoBasicSearch%3FQuery%3Dcontracting%2Bwith%2Bminors%26acc%3Don%26wc%3Don%26fc%3Doff%26group%3Dnone%26refreqid%3Dsearch%253Aefa81cd592b873fc34cb2fc14094e707&ab_segments=0%2FSYC-5910%2Ftest&refreqid=fastly-default%3A1f46b4df07b10984d691cc442139ac3d&seq=1#metadata_info_tab_contents
Fell R. (2014), Restraint of Trade: Information and sample clause https://assets-global.website-files.com/5e332a62c703f653182faf47/5e332a62c703f6b1fa2fdb96_Restraint-of-Trade%20(1).pdf
Judicial Education Center (2021)http://jec.unm.edu/education/online-training/contract-law-tutorial/remedies-for-breach-of-contract/
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