209A Burton Road Branston, Burton onTrent Direct Line: 011658548222 Date:22/12/2017 Computers break Leicester Leicestershire De13 6XB Dear Computers break, I hope this email finds you well.
I would bepleased to offer you legal advice on the issue in relation to the disputingparty, have you tried restarting it (HYTRI) provided asettlement has not been reached. In respect of the situation, the main element of thisdispute is whether you wrongfully terminated the contract between you and theopposing counsel under which you agreed to advertise your repair servicethroughout Leicestershire. Toresolve the conflict, I advise you to undergo alternative dispute resolution(ADR). These include arbitration and mediation.
Or alternatively litigationwhich is a process of taking it to court. Firstly, arbitration is a process which involves a 3rd partycalled the arbitrator or a panel. Typically speaking, it will be alawyer/expert in the field of the dispute- terminating a contract.
The legallybinding decision reached is known as award and can be imposed upon you andthe conflicting party by the courts.1 Following this, arbitration is a private procedureand so outsiders getting access to sensitive information isn’t possible such asHYTRI poor quality of work. Following this there’s no risk of publicity damage toyour computer repair store company and service as a result due of reportproceedings.2 Under the arbitration act 1996, the courts only have aresidual level of intervention unlike litigation. This means courts can onlyintervene in this situation If there’s a failure in providing a justsettlement.
3 Regarding cost, arbitration is a cheaper procedurethan taking a case to court. Combined with using a specialist arbitrator means he/shehas expert knowledge of the area under consideration which is terminating acontract “for cause” but failing to identify it. Thus, they can come toconclusions within accepted practice.
However, you should be aware of the fact utilizingspecialist arbitrators can be expensive nevertheless. The lack of a contract clause means arbitration isonly available only by the agreement of both you and HYTRI. Moreover, its muchquicker than taking the case through the courts but HYTRI and you may be able tomake use of the options to challenge the award the arbitrator has issued. Consequently,this would mean the previous costs of arbitration would be wasted thus makingit expensive. The second type of mechanism you may consider ismediation which has been growing in popularity. It consists of a mediator whois a third party with the purpose of aiding you and HYTRI in comingto an agreement you both consider as satisfactory. This demonstrates astrength that both you and HYTRI have the final say in arriving at a decisionand will actively participate towards a common resolution when it comes topayment regarding the damages HYTRI are seeking for example.
However, havingsaid this, there’s often an assumption when it comes to mediation. This is theparties negotiate terms of their final agreement in an unhostile way and bychoice. Put simply this isn’t always the case. Often an inequality ofbargaining power and knowledge may exist. There are several different styles which you mayundergo with the first being facilitative mediation.
This is best put in the quote”asks questions, validates, and normalizes party’s points of views, searchesfor interests underneath the positions taken by parties; and assists theparties in finding and analysing options for resolution”. Fromthis we can deduce themediator will focus on aiding you and HYTRI to define issues such as the issuesregarding HYTRI losing a stream of business. This can be distinguished from anevaluative type because the mediator will be completely neutral in terms ofopinions and recommendations in relation to the damages being sought by HYTRI. Thisshows you will be given the opportunity to describe the contract dispute from yourperspective in the absence of the restrictions imposed by civil rules.4 In contrast, in an evaluative type, the mediatorapplies his/her knowledge to give an opinion. This evaluation will also pointout strength and weaknesses of what you and HYTRI have proposed such as theclothing not being regulated under the contract. This highlights an importantstrength which is mediation provides an opportunity to test theories of yourcase. On the contrary If the mediation process is not monitored, then it maylead to the powerful participant to dominate the vulnerable party.
This maylead to a forced agreement between you and HYTRI. Alternatively, litigationis available. This is taking the case to court and the judge will decide thecase by considering yours and HYTRI evidence and testimony. One disadvantage oflitigation is it is time consuming, so it can take months to reach a decision.
This is because there are various steps before the trial begins such aspreparing witness statements. Not only the pre-trial steps are lengthy, but thecourt proceedings can be potentially complex. This insinuates litigationexpense is incurred prior to trial and the rest is for the trial because youwould need to pay lawyer’s fees.
This illustrates its only more beneficial tothe wealthier party as they can hire an experienced lawyer to participate.Besides that,it could be argued litigation is unsuitable for this type of dispute because itis technical. There’s a chance neither judge or jury will have the relevantknowledge and experience to deal with the case which may result in incorrectdecisions and appeals. However, the judge’s decision can be overturned and canbe appealed to a higher court. This demonstrates the importance of an appealprocess which is not available in mediation.Arguably, takingthe court route may deteriorate the commercial relationship between you andHYTRI because of the potential unacceptable court decisions. Consequently. thisdemonstrates the unlikeliness of a mutually acceptable decision.
Nevertheless,the courts have the power to oblige witnesses to attend which would beimportant to the resolution of this dispute. The right to a jury is alsoequally valuable.In summary, afterweighing and analysing the pros and cons of each method, mediation is the bestoption to undergo. This is because it has a higher chance of preserving therelationship between you and HYTRI without putting your dispute in the publicdomain like civil litigation. Ultimately this is a faster process offeringsolutions further than a court could impose. Likewise, arbitration is deemed asan adversarial process because of the binding third party’s decision.
however,the element of control means you and HYTRI must agree to the settlement whichis difficult to achieve and could further result in a small claims hearing.If you have anyfurther enquiries, or wish to discuss the subject matter further, please do nothesitate to contact me. Yourssincerely, Marya BanoMiss MaryaBano, For and on behalf of blacksmith, Storey and Catenari LLP1 Gary Slapper and David Kelly, ‘Analysing the English legal system’, (2park square, Milton Park, Abingdon, Oxon: Routledge, 2017) 18thedition. p.6002 Gary Slapper and David Kelly, 2017.
‘Analysing the English legal system’, 18thedition. p.6253 Gary Slapper and David Kelly, 2017. ‘Analysing the English legal system’, 18thedition.
p.6204 Katrina foster, ‘A Study in Mediation Styles:A Comparative Analysis of Evaluative and Transformative Styles’, June 2003