Deck 4: Dispute Resolution

Question 1

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 1

B

Question 2

Two mid-sized business enterprises want to enter into a long-term commercial relationship. Both negotiating teams have been instructed to ensure that any disputes that may arise will proceed through the alternative dispute resolution governed by legislation. What action would a lawyer most likely advise the negotiating teams to take in order to satisfy that requirement?

A) The parties must include a mutually agreeable arbitration clause in their agreement.
B) The parties must choose an acceptable adjudication clause in their contract.
C) The contract should include a mutually agreeable alternative dispute resolution clause.
D) The parties' contract should include an acceptable mediation clause.

Answer 2

A

Question 3

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 3

B

Question 4

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 5

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 Davey Jones's client in the initiating document?

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

Question 6

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 7

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 8

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 9

Who is characterized as a good listener whose professional function is to provide assistance to disputing parties wanting to negotiate a settlement of their dispute?

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

Question 10

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 11

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 12

What does "ADR" stand for, in reference to "ADR training"?

A) alternative dispute restitution
B) alternative dispute resolution
C) alternative dispute regulations
D) alternate director responsibilities

Question 13

Which of the following would be a valid criticism of the use of arbitration clauses in contracts between investment brokers and their clients?

A) A code of conduct includes legislated procedures for resolving consumer complaints.
B) Clients are unable to ensure the independence and expertise of a suggested arbitrator.
C) Arbitration firms favour brokers and deny the clients due process.
D) An arbitration procedure requires clients to pay a fee to have their complaint remedied.

Question 14

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 15

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 16

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 17

What is the goal of negotiation?

A) to set priorities for dispute resolution
B) to prolong the negotiation process
C) to reach a fair and acceptable outcome
D) to assess resolutions to legal disputes

Question 18

Two companies involved in an international transaction contractually agreed on which country's laws would apply and which country's court would preside over litigation of disputed matters. According to those provisions, an English court awarded judgment in favour of the Canadian company against the Italian company for breach of contract. Which of the following would immediately indicate that the Canadian company continues to face a significant hurdle with regard to successfully concluding the disputed matter?

A) refusal by the New York Commercial Award Enforcement Agency to recognize the validity of the U.K. court's decision
B) the refusal of an Italian court to accept jurisdiction to enforce the judgment obtained from the English court
C) the filing of an appeal of the English court's decision with the UNCITRAL International Commercial Appeal Court
D) the tardiness of the Italian company to submit payment in honour of the judgment given by the English court

Question 19

Dante is a senior risk manager who has been assigned the task of determining the viability of obtaining an enforceable remedy regarding the non-payment of a customer's account. Which of the following questions must initially be answered in the positive in order for Dante to proceed further?

A) If litigation is successful, will the offending party's assets satisfy the judgment?
B) Is the offending party willing to negotiate a compromise in good faith?
C) Does the significance of the dispute justify the expenditure of time and resources?
D) What priority will the offending party give to providing an effective negotiator?

Question 20

What is the meaning of the term "limitation period"?

A) the time covered by the retainer paid for the lawyer's services
B) a set period of time in which a legal action must be commenced
C) a period of time that must pass before a claim can be filed
D) a maximum amount recoverable for breach of contract

Question 21

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 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

Davey Jones Law Firm has filed a claim with the court on behalf of its client, naming Gaston's Commercial Fabricators Inc., as the opposing party. What title is given to Gaston's in the initiating document?

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

Question 24

What term is given to the losing party who will be filing an appeal within 30 days of the date of a trial court's decision?

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

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

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 $2,500
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 27

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 28

What litigation term is used to describe the party that has a judgment registered against them?

A) judgment indebted
B) the judgment creditor
C) judgment proof
D) the judgment debtor

Question 29

There is a short-term concern that widespread use of ADR will result in diminished openness and accountability of the legal system.

Question 30

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 31

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 32

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 33

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 34

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 35

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 36

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 37

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 38

To a business that has become the target of litigation, contingency fees can result in more litigation by improving accessibility to the legal system for claimants who might otherwise lack the resources to sue.

Question 39

Following the court's registration of a claim, which of the following immediately activates the limitation period with respect to the deadline for filing of the defendant's response?

A) e-mail transmission of the claim to the respondent's lawyer
B) publication of the notice of claim in the local newspaper
C) personal service of the notice of claim on the respondent
D) personal service of the claim on the defendant

Question 40

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 41

The suitability of disputes for alternative dispute resolution is not dependent on the type of law involved.

Question 42

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

Question 43

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

Question 44

The legal foundation and outcome of a litigation claim are governed exclusively by the legal rules contained in relevant common law.

Question 45

Upon learning that a problem with a faulty computer system design caused a customer's business to be disrupted, the risk manager should check the applicable supply contract to determine the extent of its liability.

Question 46

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

Question 47

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 48

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 49

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

Question 50

Procedural rules dictate how a claim is carried through the civil justice system.

Question 51

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

Question 52

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

Question 53

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

Question 54

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 55

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 56

It would be very rare to find a significant commercial contract, whether international or domestic, that would contain an arbitration clause in it.

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

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 59

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

Question 60

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 61

Identify and briefly describe matters that will influence the best courses of action a business may choose to take with respect to dispute resolution. Include an indication of the key element involved in approaching this process.

Question 62

Identify the stages of a lawsuit and briefly describe the parties who would typically be involved.

Question 63

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?

Question 64

What are advantages and disadvantages of having electronic data as part of the documentary evidence in a lawsuit?

Question 65

Contrast the advantages and disadvantages of alternate dispute resolution.