Friday, May 29, 2009

Allternative Dispute best thing after litigation?

Different type of dispute may require different type of avoidance, management and resolution method. The already existing alternative dispute avoidance and dispute resolution methods are dispute avoidance procedures such as ‘Dispute Review Boards’ (“DRBs”), ‘Dispute Adjudication Board (“DAB”) and ‘Dispute Resolution Adviser’ (“DRA”) and alternative dispute resolution methods include Expert Determination, Negotiation, Mediation and Arbitration.

In comparison of the DRBs, DAB and DRA to litigation, these disputes avoidance procedures are cheaper and cost lesser time than litigation. However, not all of the decisions from these methods are final and binding. DRBs only has a non-binding recommendation and methods such as DAB and DRA may produce a final and binding decision with room for it to be challenged through litigation or arbitration within a period specified. Never the less these methods are great only in trying to avoid from major disputes from taking place. They can be a good tool to avoid litigation proceedings but not as an alternative method to litigation.

As for dispute resolution through the method of expert determination, it is an appropriate method to be adopted when technical issue has arisen and requires an expert’s opinion. Usually it is not related to legal matters and litigation is not necessarily required. Moreover, the method can give a fast result, but the determination is not final and binding unless the parties have agreed to it. If the parties fail to reach an agreement, then they will have to seek resolution through arbitration or litigation.

A different approach to dispute resolution, yet have long been established in the business world, negotiation is a method where the parties communicate to seek resolution on the dispute matter. If the parties are open to compromise on the issues, it is a cost efficient method for clarification and resolving misunderstanding. The result from the negotiation is also easily enforceable and binding if the parties have made the agreement in a form of contract or deed. However since negotiation is about the power of persuasion, this method does have a weakness where the result of the negotiation result may be one-sided to the stronger party. If the weaker party feels that the result is unfair, they can choose to proceed with litigation (on the absence of mediation or arbitration provision in the existing contract).

Mediation is also a familiar method of alternative dispute resolution recognize in the industry. It is now a common method to be pursued prior to arbitration or litigation. Mediation is similar to arbitration where a neutral person is being elected as a regulator or facilitator in a proceeding to help the parties to achieve an agreement to a solution to the issue in dispute. Moreover alike to negotiation and expert determination, the result from mediation is only enforceable if a contract or deed has been made. Besides, if conducted well it will not jeopardize the working relationship between parties and even further create a better understanding between parties. However, since the objective of mediation is to reach settlement, it might take longer time and would increase the proceeding cost too. In this kind of situation, it is better for the parties to opt for arbitration or litigation.

Finally, among the most recognized method for alternative dispute resolution in the industry, arbitration is usually the next best method if the parties fail to seek resolution through mediation or negotiation. It is a dispute resolution method where a single or multiple independent arbitrator/s mutually elected by the parties in private proceedings. The arbitrator elected is usually an expert in the fields that is in dispute. With this, the arbitrator can make the best decision within his jurisdiction, especially if it is a technical dispute that the parties are facing. In these private proceedings, the parties are free to determine the scope, nature and rules. At a glance, it can be seen a less formal proceeding that can achieve the same result as litigation proceedings. Yet, arbitration method could be much faster than litigation and since it is faster, more cost can be saved too. Furthermore the arbitration award is final and binding and easily enforceable domestically and internationally. This would be a good alternative to litigation if the parties in disputes are in an international construction and trading contract.

From these comparisons, it can be distinguished that the most suitable method as an alternative to litigation is arbitration. Litigation is a rigid legal proceeding in court or tribunal with the most formal resolution method that is expensive and has potential for long delays, while arbitration is faster and cost efficient proceeding in a friendlier environment. Both proceedings can achieve a final and binding result, but arbitration might achieve a better result if the issue in dispute is a technical issue and not a legal issue.

--this is what I answered in one of my exam. i scored 15 of 25..not bad, but i know next time i can do better..correto mundo!

Sunday, May 17, 2009

My 1st Autumn Pics

Friday, May 15, 2009

My 1st attempt to write legal argument (with comment from my lecturer)


From the factual background given, it is identified that the subject in question is that if Ali owes a duty of care to Carlos by letting him drink to an intoxicated point and letting him enter into agreement to let intoxicated Bianca drive him back home making Ali liable for the damages of the injury suffered by Carlos from the collision due to Bianca’s irresponsible driving under the influence of alcohol.


Ali is the host of the party that supplied a bath filled with beers to the guests, inviting them to drink while enjoying their time there, in which had opened the opportunity for Bianca and Carlos to drink to a heavily intoxicated state and later on putting themselves in danger.

In the case of Johns v Cosgrove & Ors (1997) MVR 110, the court referred to a certain authorities established in Australia, England and Canada supporting the principle that there is responsibility of the alcoholic drink provider to the person who have consumed it and is heavily intoxicated in result of the consumption to ensure that he/she is not exposed to any foreseeable danger.

In the case, Derrington J ruled:

It is not negligence merely to serve a person with liquor to the point of intoxication; but it is so if because of the circumstances it is reasonable foreseeable that to do so would cause danger to the intoxicated party, such as, for example where the intoxication is so gross as to cause incapacity for reasonable self-preservation when it is or should be known that he or she may move into dangerous circumstances, and where no action is taken to avert this.
Ali was aware that Carlos was in such state and was in reality putting him in potential danger by accepting to be driven home by another person who is under the influence of alcohol.

Therefore Ali does owe Carlos a duty of care during his intoxicated state at and after her party.


Since it has been established that Ali does owe a duty of care to Carlos, it is now important to identify if there is any breach of such duty.

From the hypothetical, it is evident that Ali was aware of the agreement made by both of the intoxicated persons, in which they are not in proper state of mind to make a sound judgement. Driving under the influence of alcohol obviously would expose the driver and any of the passengers to a foreseeable danger. With Bianca also being known by Ali as a person with ghastly drinking habits and severe intoxication problem; it places a greater weight to the foreseeable danger ahead for both the driver and the passenger.

Ali’s decision in not objecting or do anything to stop Bianca from driving Carlos home, implies that Ali enabled Bianca to drive in a drunken state which resulted in the accident that injured Carlos. Ali had exposed both Bianca and Carlos to danger, consequentially breached her duty of care.


As a result of Ali’s breach, she had become liable to the damages suffered by Carlos.
However, Ali is not the only person who should be held liable to the damages. Carlos had accepted the beer provided by Ali and became drunk although knowing that later he has to get himself home. In a way he should have foreseen the danger that he might have put himself in if he’s intoxicated at the party.
In the case, the judge referred to the cases Kilminster v Rule (1983) 32 SASR 39; McPherson v Whitfield [1996] 1 Qd R 474. The judge agreed to the rule that if the plaintiff had deliberately become intoxicated, he shall be liable to the damages because he is also at fault into putting himself into any potential danger.


From the analysis, it is evident that Ali is at negligence by breaching her duty of care to Carlos during his intoxicated state by letting him become the passenger of the drunken Bianca. However, Carlos is also at fault by being deliberately intoxicated at Ali’s party foreseeing the fact that he might also put himself in danger. Therefore both parties are liable to the damages.


This is a good attempt. Your response is well structured and argued. Your classification of issues however is casery and you have not spotted the main issues raised by the question.


okie dokie... Now I know.


Sunday, May 3, 2009

Having my 1st exam now, this song just kinda soothing during war time..

FUCK YOU UP!!! son of a bitch