209A have a residual level of intervention unlike litigation.

 

209A Burton Road Branston, Burton on
Trent

 

Direct Line: 011658548222

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Date:
22/12/2017

 

Computers break

 

Leicester

 

Leicestershire

 

De13 6XB

 

 

Dear Computers break, 

 

I hope this email finds you well. I would be
pleased to offer you legal advice on the issue in relation to the disputing
party, have you tried restarting it (HYTRI) provided a
settlement has not been reached.

 

In respect of the situation, the main element of this
dispute is whether you wrongfully terminated the contract between you and the
opposing counsel under which you agreed to advertise your repair service
throughout Leicestershire.  To
resolve the conflict, I advise you to undergo alternative dispute resolution
(ADR). These include arbitration and mediation. Or alternatively litigation
which is a process of taking it to court.

 

Firstly, arbitration is a process which involves a 3rd party
called the arbitrator or a panel. Typically speaking, it will be a
lawyer/expert in the field of the dispute- terminating a contract. The legally
binding decision reached is known as award and can be imposed upon you and
the conflicting party by the courts.1 Following this, arbitration is a private procedure
and so outsiders getting access to sensitive information isn’t possible such as
HYTRI poor quality of work. Following this there’s no risk of publicity damage to
your computer repair store company and service as a result due of report
proceedings.2

 

Under the arbitration act 1996, the courts only have a
residual level of intervention unlike litigation. This means courts can only
intervene in this situation If there’s a failure in providing a just
settlement. 3 Regarding cost, arbitration is a cheaper procedure
than taking a case to court. Combined with using a specialist arbitrator means he/she
has expert knowledge of the area under consideration which is terminating a
contract “for cause” but failing to identify it. Thus, they can come to
conclusions within accepted practice. However, you should be aware of the fact utilizing
specialist arbitrators can be expensive nevertheless.

 

The lack of a contract clause means arbitration is
only available only by the agreement of both you and HYTRI. Moreover, its much
quicker than taking the case through the courts but HYTRI and you may be able to
make 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 making
it expensive.

 

The second type of mechanism you may consider is
mediation which has been growing in popularity. It consists of a mediator who
is a third party with the purpose of aiding you and HYTRI in coming
to an agreement you both consider as satisfactory. This demonstrates a
strength that both you and HYTRI have the final say in arriving at a decision
and will actively participate towards a common resolution when it comes to
payment regarding the damages HYTRI are seeking for example. However, having
said this, there’s often an assumption when it comes to mediation. This is the
parties negotiate terms of their final agreement in an unhostile way and by
choice. Put simply this isn’t always the case. Often an inequality of
bargaining power and knowledge may exist.

 

There are several different styles which you may
undergo with the first being

facilitative mediation. This is best put in the quote
“asks questions, validates, and normalizes party’s points of views, searches
for interests underneath the positions taken by parties; and assists the
parties in finding and analysing options for resolution”.

 

From
this we can deduce the
mediator will focus on aiding you and HYTRI to define issues such as the issues
regarding HYTRI losing a stream of business. This can be distinguished from an
evaluative type because the mediator will be completely neutral in terms of
opinions and recommendations in relation to the damages being sought by HYTRI. This
shows you will be given the opportunity to describe the contract dispute from your
perspective in the absence of the restrictions imposed by civil rules.4

 

In contrast, in an evaluative type, the mediator
applies his/her knowledge to give an opinion. This evaluation will also point
out strength and weaknesses of what you and HYTRI have proposed such as the
clothing not being regulated under the contract. This highlights an important
strength which is mediation provides an opportunity to test theories of your
case. On the contrary If the mediation process is not monitored, then it may
lead to the powerful participant to dominate the vulnerable party. This may
lead to a forced agreement between you and HYTRI.

 

Alternatively, litigation
is available. This is taking the case to court and the judge will decide the
case by considering yours and HYTRI evidence and testimony. One disadvantage of
litigation 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 as
preparing witness statements. Not only the pre-trial steps are lengthy, but the
court proceedings can be potentially complex. This insinuates litigation
expense is incurred prior to trial and the rest is for the trial because you
would need to pay lawyer’s fees. This illustrates its only more beneficial to
the 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 it
is technical. There’s a chance neither judge or jury will have the relevant
knowledge and experience to deal with the case which may result in incorrect
decisions and appeals. However, the judge’s decision can be overturned and can
be appealed to a higher court. This demonstrates the importance of an appeal
process which is not available in mediation.

Arguably, taking
the court route may deteriorate the commercial relationship between you and
HYTRI because of the potential unacceptable court decisions. Consequently. this
demonstrates the unlikeliness of a mutually acceptable decision. Nevertheless,
the courts have the power to oblige witnesses to attend which would be
important to the resolution of this dispute. The right to a jury is also
equally valuable.

In summary, after
weighing and analysing the pros and cons of each method, mediation is the best
option to undergo. This is because it has a higher chance of preserving the
relationship between you and HYTRI without putting your dispute in the public
domain like civil litigation. Ultimately this is a faster process offering
solutions further than a court could impose. Likewise, arbitration is deemed as
an adversarial process because of the binding third party’s decision. however,
the element of control means you and HYTRI must agree to the settlement which
is difficult to achieve and could further result in a small claims hearing.

If you have any
further enquiries, or wish to discuss the subject matter further, please do not
hesitate to contact me.

Yours
sincerely, Marya Bano

Miss Marya
Bano, For and on behalf of blacksmith, Storey and Catenari LLP

1 Gary Slapper and David Kelly, ‘Analysing the English legal system’, (2
park square, Milton Park, Abingdon, Oxon: Routledge, 2017) 18th
edition. p.600

2 Gary Slapper and David Kelly, 2017. ‘Analysing the English legal system’, 18th
edition. p.625

3 Gary Slapper and David Kelly, 2017. ‘Analysing the English legal system’, 18th
edition. p.620

4 Katrina foster, ‘A Study in Mediation Styles:
A Comparative Analysis of Evaluative and Transformative Styles’, June 2003 accessed 1/01/2018