McGraw-Hill/Irwin Copyright © 2011 by The McGraw-Hill Companies, Inc. All rights reserved.

Chapter 4

Resolving Disputes:Litigation andAlternative DisputeResolution Options

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CHAPTER OVERVIEW

The role of dispute resolution in business planning.

The process of using civil litigation to resolve disputes.

Methods of alternative dispute resolution.

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Parties to a Lawsuit

Plaintiff: The party who initiates a lawsuit by filing a complaint with the clerk of the court against the defendant.

Defendant: The party sued in a civil lawsuit, (a defendant may be called a respondent).

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Pleadings Stage

Complaint and Summons

Answer

Counterclaim

Cross-Claim

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Discovery Stage

Depositions

Interrogatories

Requests for production

Request for Admissions

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Motions Used During Litigation

To Dismiss

For Summary Judgment

To Compel Discovery

To Dismiss for Mistrial

For Judgment as a Matter of Law

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Trial

If the case cannot be settled, the parties will eventually go to trial.

The trial generally takes place in front of a judge as the finder of law and with a jury as a finder of fact.

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Jury Selection and Opening

Process of asking potential jurors questions to reveal any prejudices.

The questioning process is known as voir dire.

After the jury is selected, the attorneys present their theory of the case and what they hope to prove to the jury in opening statements.

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Testimony

After the opening statement, the plaintiff’s attorney then asks questions, known as direct examination, of the witnesses.

The defendant’s attorney may then conduct cross-examination of the witnesses.

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Closing Arguments

Once the testimony/evidence is presented to the jury, the attorneys sum up the case and try to convince the jury that their version of the case is more compelling.

This is known as a closing argument.

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Verdict

The jury returns a decision: the verdict.

If, however, the jury cannot agree on a verdict, this is known as a hung jury and the litigants must start the process all over.

Rules for civil litigation frequently do not require a unanimous verdict, so hung juries are rare in a commercial dispute.

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ALTERNATIVE DISPUTE RESOLUTION-Arbitration & MediationIncreasingly popular due to the following:

Cost

Time

Privacy

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learning outcomes checklist

4 - 1 Identify the ways in which dispute resolution can be used in business planning.

4- 2 Explain the meaning and purpose of civil litigation as a method of resolving disputes.

4- 3 Articulate the concept of standing.

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learning outcomes checklist

4- 4 Name the stages of litigation and identify the characteristics of each stage.

4- 5 List the methods of alternative dispute resolution (ADR) and potential advantages of using ADR.

4- 6 Distinguish between arbitration and mediation and explain both processes .

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learning outcomes checklist

4- 7 Apply the legal standards for when an arbitration clause may be held invalid.

4- 8 Explain how online dispute resolution can be used to solve small claim disputes.

4 - 9 Provide an example of a hybrid form of alternative dispute resolution.