Deck 4: Dispute Resolution

Question 1

A mediator attempting to negotiate a resolution to a commercial dispute has conceded that she is unable to move the dispute through the mediation process.What would the mediator most likely say is the main factor contributing to the failed mediation?

A) the parties' inability to choose effective teams of negotiators
B) the unwillingness of one party to compromise and quickly resolve the issues
C) the mediator's lack of familiarity with the industry and the businesses
D) the parties' mutual failure to include an arbitration clause in their contract

Answer 1

B

Question 2

Which of the following is an accurate statement regarding the purpose of the discovery stage of a lawsuit?

A) The discovery phase is intended to reduce the costs of litigation.
B) The purpose of the discovery phase is to disclose evidence in support of the claims in the lawsuit and test the strength of the opposing party's claims.
C) The purpose of the discovery phase is to cross-examine all of the witnesses that will be called at trial.
D) The purpose of the discovery phase is to allow each side an opportunity to obtain expert evidence that can later be used at the trial.

Answer 2

B

Question 3

Which of the following characterizes a required element in circumstances where ADR has been chosen as the preferred method of resolving a dispute between commercial entities?

A) the wish to avoid rushing a settlement
B) a mutual desire to retain the relationship
C) one party will make a large payout of cash
D) the wish to amicably terminate the relationship

Answer 3

B

Question 4

Davey Jones Law Offices acts as legal counsel to a large commercial client.The client has instructed Mr.Jones to prepare and file a litigation claim naming a competitor as the opposing party in the lawsuit.What title is given to the opposing party in the initiating document?

A) respondent
B) petitioner
C) plaintiff
D) defendant

Question 5

Which of the following is applied to determine how a disputed commercial claim will proceed through the civil justice system?

A) substantive rules
B) procedural rules
C) objective rules
D) mandatory rules

Question 6

What difference between litigation in Canada and litigation in the United States causes concern for Canadian companies that do business in the U.S.marketplace?

A) American lawyers are not usually trained in the same way as Canadian lawyers are.
B) Unlike in Canada,most U.S.jurisdictions do not require a losing party to pay a portion of the winner's costs.
C) Unlike in Canada,most U.S.jurisdictions have not embraced alternative dispute resolution as a means for resolving disputes.
D) Unlike in Canada,most U.S.jurisdictions do not have limitation periods that restrict plaintiffs from suing after the passage of a considerable amount of time.

Question 7

Walter receives and considers submissions from both parties involved in a commercial dispute.He will deliver his decision shortly.In accordance with the terms of the contract governing the disputing parties' relationship,they are bound to comply with that decision.What role does Walter play in providing a resolution to this dispute?

A) mediator
B) judge
C) arbitrator
D) adjudicator

Question 8

SolarCell Corp.has decided to litigate a dispute over an $8,000 outstanding account.Over the course of the business relationship,the customer has proven to be both unreliable and unreasonable.SolarCell is no longer interested in maintaining the business relationship.Which court will have jurisdiction to decide the outcome of SolarCell's claim?

A) small claims court
B) class actions court
C) the Trial Court of Canada
D) the Superior Court of Justice

Question 9

Dante is a claims adjuster with the insurer of a supermarket chain and has just concluded successful negotiations with a customer who was injured as a result of slipping on ice in a store parking lot.Which of the following steps should now take place?

A) The parties should now enter into a settlement or release agreement.
B) The parties should take their agreement to a judge for review and approval.
C) The insurance company should seek reimbursement of the claim from the supermarket chain.
D) A written contract should now be filed with the court.

Question 10

Negotiating teams from two small companies reach a mutually agreeable compromise to settle a contractual dispute.The parties shake hands and part company with feelings of relief.What likely had the greatest motivating influence on the disputing parties to achieve a remedy through this form of dispute resolution?

A) realizing cost savings for concerned parties
B) assurance that insurance covered the risk
C) justification of the use of the firm's resources
D) hourly rate charged by expensive lawyers

Question 11

Which of the following circumstances would cause a risk management department to consider referring a commercial dispute to alternative dispute resolution?

A) The parties are unconcerned about privacy or confidentiality.
B) The parties disagree about the nature of the disputed issues.
C) The parties both desire a quick resolution of minor problems.
D) One or more of the parties does not respond to cost incentives.

Question 12

Which of the following statements best describes one of the features of alternative dispute resolution?

A) It is free because it is not necessary for the parties to hire lawyers.
B) It is only available before a lawsuit has been commenced.
C) It usually results in the faster resolution of a dispute than litigation alone.
D) It is only available when litigation has already been commenced.

Question 13

What is the rationale for strict limitation periods?

A) They provide useful guidelines for when to commence litigation.
B) They require parties to have their trials heard in a timely manner.
C) They prevent plaintiffs from advancing old claims in which evidence may have been lost because of the passage of time.
D) They establish upper financial limits on liability for defendants.

Question 14

Which of the following individuals makes a decision that is final and binding on the parties?

A) negotiator
B) mediator
C) lawyer
D) arbitrator

Question 15

While negotiation can be used to resolve almost any type of dispute,what is one situation where a business should not proceed with negotiation?

A) when litigation has already been commenced
B) where the parties need a quick solution
C) when insurance covers the risk that is the subject of the dispute
D) where the parties wish to preserve confidentiality

Question 16

Which of the following statements is true regarding the use of arbitration as a form of alternate dispute resolution?

A) Arbitration is only available if the parties have included an arbitration clause in their agreement.
B) All arbitrators must meet particular mandatory qualifications.
C) Arbitration decisions are normally final and enforceable in courts.
D) Arbitration offers little flexibility in the degree of formality of its processes.

Question 17

Which of the following would be a valid criticism of the use of arbitration clauses in consumer contracts?

A) Arbitration clauses may unfairly restrict consumer access to the courts.
B) Clients are unable to ensure the independence and expertise of a suggested arbitrator.
C) Arbitration firms tend to treat consumers unfairly.
D) An arbitration procedure requires clients to pay a fee to have their complaint remedied.

Question 18

The activities of a large multinational corporation violated federal and provincial environmental laws.It polluted a clean water source and caused illness among the people and wildlife inhabiting the affected area.What would the corporation's lawyers most likely suggest as the main reason for attempting to force resolution of the legal dispute through ADR?

A) a desire to avoid establishing a common law precedent for damages arising from environmental infractions
B) a need to sustain the operation based on the amount of capital resources committed to it business activities
C) the ability to keep details of the contamination and of the settlement private and confidential
D) the fact that an arbitrator's decision will be binding and likely be favourable to the corporation

Question 19

A store manager of a large grocery chain makes a verbal offer to compensate a customer for a serious hand injury that requires medical attention.Even though the store manager's offer is refused,he is seriously reprimanded by the vice president of the legal risk department.What was the vice president's most significant concern?

A) to pay as small a settlement as possible
B) to clarify the situation before entering negotiations
C) reaching a fair and acceptable outcome
D) negotiating could imperil risk insurance coverage

Question 20

What is the role of common law and statue law with regard to the litigation of a commercial dispute?

A) Both provide a source of the objective rules applicable to the disputed matter.
B) Each provides a source of the substantive rules applicable to the contested matter.
C) Both provide rules governing the legal foundation for determining how trials proceed.
D) Each contains rules that determine what the process leading up to trial will be.

Question 21

The Ultimate Caterer Inc.did not fare well in court.In addition to damages,the company was ordered to pay costs to the young couple whose wedding dinner left them and many of their guests very ill.Which of the following correctly describes the meaning of costs in these circumstances?

A) the legal fees incurred by the defendant in a lawsuit
B) the amount the loser must pay toward the winner's expenses
C) the legal fees incurred by the plaintiff in a lawsuit
D) the amount of court fees charged for litigating the lawsuit

Question 22

In addition to setting out the details of who must pay how much to whom,which of the following is required in a court's decision in a civil case?

A) The court's account of events and application of relevant case law.
B) The identification of relevant legal guidelines for interpretation of contracts.
C) Appropriate justification based on the evidence and legal rules.
D) Details about the provincial jurisdictions where enforcement is possible.

Question 23

An unsuccessful litigant may appeal a trial decision as long as notice of that party's intention to appeal is filed within a specified number of days following the delivery of the trial court's decision.

Question 24

Which of the following is a significant risk for Canadian companies doing business in the U.S.marketplace?

A) Damage awards in the U.S.tend to be much higher than in Canada.
B) Unsuccessful litigants have limited rights to appeal in the U.S.compared to Canada.
C) Contingency fee agreements are less frequently available in the U.S.than in Canada.
D) Unlike Canada,the U.S.has a general rule that unsuccessful litigants must pay the costs of the winning party.

Question 25

Martha's lawyer is not satisfied with the court's decision,so he is urging her not to accept it.What step in the litigation process is Martha's lawyer recommending she take?

A) appeal
B) adjudication
C) litigation
D) ADR

Question 26

What is the role of the pleadings stage of the litigation process?

A) to allow time for the parties to plead the basis of their case before a judge
B) to prepare a document containing the allegations supporting the claim
C) to allow time for the defendant to concede and allow default judgment
D) to facilitate the exchange of formal documents stating the basis of the suit

Question 27

Davey Jones Law Firm has filed a claim with the provincial court,civil division on behalf of its client,naming Gaston's Commercial Fabricators Inc.,as the opposing party.What title is given to the document that will initiate the lawsuit?

A) civil demand
B) statement of demand
C) petition
D) claim

Question 28

The law firm of Janes & Jones personally served the defendant with a claim,and the defendant failed to respond with a defence within 20 days,as required by provincial law.Which of the following statements describes the position of the defendant?

A) The defendant has effectively admitted the claim.
B) The defendant must be re-served with the claim.
C) The defendant may file a counterclaim.
D) The defendant may now seek arbitration of the claim.

Question 29

Sian has been named in a lawsuit alleging a large balance owed on an automobile lease.Sian believes the contract was voided when the vehicle's motor ceased operating the day after signing the lease agreement.Sian is still owed the compensation the dealership promised to pay her as reimbursement of the towing cost to have the vehicle returned to the dealership after it broke down.If Sian wants to avoid a default judgment and recover her losses,how should she proceed?

A) issue a request for a discovery of documents
B) issue a request for a pretrial conference
C) immediately file a defence and counterclaim
D) file a statement of claim based on her losses

Question 30

The goal of negotiation is to reach a resolution that is agreeable to all parties.

Question 31

NoTangles Wireless Connections Inc.enters the details required on the claim form provided by the small claims court: each party's name and address,the nature of the dispute,and the claim amount of $25,050.Why will the court clerk refuse to register NoTangles's claim?

A) the jurisdiction's small claims court dollar limit is $25,000
B) the amount claimed exceeds the court's jurisdiction
C) the court lacks jurisdiction to hear commercial disputes
D) all litigation claims must be filed by law firms

Question 32

John is hoping for an opportunity to settle his lawsuit based on the strength of his evidence before an actual trial takes place.How should he instruct his lawyer to proceed with respect to the litigation process?

A) undertake the informal pre-trial discovery of evidence process
B) complete formal discovery involving the disclosure of supporting evidence
C) file formal evidence for presentation to the judiciary to support a claim
D) initiate the informal disclosure process of all supporting evidence

Question 33

What is the burden of proof required to be satisfied in a civil lawsuit?

A) proof on the balance of probabilities
B) proof that is beyond question
C) proof beyond a reasonable doubt
D) proof that is beyond any doubt

Question 34

Even though the amount of accumulated interest awarded previously by the trial judge was reduced,management of Renna Inc.indicated to its lawyer that it was pleased with the result of her efforts on the company's behalf.Which of the following would Renna Inc.'s lawyer have most likely stated as an explanation of the decision rendered by the appeal court?

A) The appeal court confirmed the original decision due to the trial judge's understanding and application of the law.
B) The appeal court varied the original decision due to the trial judge's misunderstanding and application of the law.
C) The appeal court reversed the original decision based on rehearing arguments of the facts cited by the trial judge.
D) The appeal court quashed the original decision based on rehearing arguments of the facts cited by the trial judge.

Question 35

What is a counterclaim?

A) It formally sets out judiciary evidence filed to counter the plaintiff's claim.
B) It documents the response to a defence claimed by the countering party.
C) It documents the claim for loss filed against the party initiating the process.
D) It formally sets out facts to be relied in defence against the plaintiff's claim.

Question 36

What is the meaning of "evidence" in the legal environment?

A) the proof presented in court to support a claim
B) facts that are strictly documentary in nature
C) facts that are strictly verbal in nature
D) the oral details of the defence to the claim

Question 37

For how long,and under what circumstances,would a losing party's personal income and other assets such as land,houses,and vehicles be at risk?

A) for as long as 20 years in some provinces,to satisfy the payment of a judgment
B) for as long as 20 years in some provinces,beginning on the dissolution of a partnership
C) for up to a 10-year period in cases of commercial bankruptcy
D) for up to a 10-year period in cases of corporate insolvency

Question 38

Wilhelm Commercial Insurers Inc.is considering initiating a claim against an individual it now believes fraudulently misrepresented the facts of an insurance claim.The individual had been paid a substantial sum for a serious neck injury alleged to have been sustained in a slip and fall accident on a staircase in a retail store.If Wilhelm proceeds with the claim,how will the court place the burden of proof?

A) on the party alleging the loss
B) on each party's lawyer at the discovery stage
C) on each party to support their respective positions
D) on the party denying the loss

Question 39

One of the advantages of mediation is that it results in a non-binding decision that can be appealed by either party to the courts.

Question 40

ABC Loans Ltd.successfully sued Brian Dooley and obtained a judgment for $150 000 after Dooley failed to repay a loan.The value of all of Dooley's assets is only about $100 000.Which of the following statements is true about the steps ABC can now take against Dooley?

A) ABC can seize all of Dooley's assets and apply the proceeds to toward the judgment.
B) ABC cannot seize Dooley's assets but can garnish his bank account.
C) ABC will be limited in its ability to seize Dooley's assets because some assets may be exempt from seizure to ensure Dooley is not left destitute.
D) ABC will be able to apply to a public fund in the event that Dooley is unable to pay the entire judgment.

Question 41

One of the most important factors to be considered when deciding whether to proceed with a litigation of a conflict that failed to be remedied through negotiation is whether the business can devote the necessary resources to proceed with the dispute.

Question 42

One of the advantages of alternative dispute resolution is that the parties may be able to preserve their privacy and reputation.

Question 43

A commercial business should seek to manage the risk of loss by securing a basic coverage insurance policy with a reputable insurance company.

Question 44

One of the features of arbitration is that it does not create a binding precedent that will apply to future cases.

Question 45

Explain the nature of negotiation as an alternative dispute resolution method used in a business setting.Include a brief description of the technical rules that govern the operation of the negotiation process,the parties involved in preparing for negotiations,who should conduct the negotiations,and the elements required for a negotiated resolution or settlement to be reached.

Question 46

The process of discovery includes the examination of documents,oral testimony,and expert reports.

Question 47

A controversial development has been the awarding of legal costs against unsuccessful plaintiffs involved in class action suits.

Question 48

It is unusual and not advisable for the defendant to insist that a confidentiality clause be incorporated into a settlement agreement or release.

Question 49

The party ordered by the court to pay a specified amount to a winner of a lawsuit is known as a judgment debtor.

Question 50

Arbitration is a very popular method for resolving international commercial disputes.

Question 51

One of the factors influencing whether negotiations to remedy a dispute will succeed is the effectiveness of the parties involved in the negotiations.

Question 52

According to the rules provided for under the Arbitration Act,an arbitrator's binding decision may be referred for appeal before a judge presiding in a superior court.

Question 53

Identify the party on whom the burden of proof rests with respect to a trial of a commercial dispute.Briefly explain what satisfying the burden of proof will entail in the trial process,how the opposing party is entitled to respond at this stage,and what is required of the judge presiding over the litigation of the matter.

Question 54

The filing and service of a defence is part of the pleadings stage of a legal action.

Question 55

Discuss what a class action lawsuit is,including a brief description of the requirements that must be met under legislation passed in some provincial jurisdictions that would enable a class action law suit.Also include a brief explanation of how a determination is made as to whether a class action may proceed in a province that has not passed specific legislation governing the process.

Question 56

If a debt owed by a customer is not large and the customer is in financial difficulty,negotiating a payment plan or even writing off the debt may be more practical than spending money to try to collect on the account.

Question 57

When a dispute is covered by insurance,it is important that employees are aware that an attempt to negotiate a settlement may jeopardize coverage unless the insurer consents to the company conducting negotiations.

Question 58

The parties reveal and demonstrate the facts that support their allegations during the pleadings stage of litigation.

Question 59

The procedural rules in most superior courts are designed to ensure that parties can represent themselves without consulting with a lawyer.

Question 60

It is considered unwise to undertake litigation without having an appreciation of its potentially adverse consequences.

Question 61

Contrast the advantages and disadvantages of alternate dispute resolution.

Question 62

Axis Enterprises Inc.is considering expanding its operations into the United States.Compare the features of Canadian and U.S.litigation and outline some of the legal risks Axis might face as a result of the expansion.

Question 63

Outline the purpose of the discovery phase of a lawsuit and describe what normally occurs during it.

Question 64

Gorrie Industries Ltd.recently lost a lawsuit,and in addition to damages,it must also pay "costs" to the plaintiff,its former client.Explain what "costs" refers to in this context.

Question 65

How does a person who wins a case in civil court actually collect on the judgment? What limitations are there on his/her ability to collect?