Legal International Arbitration

Alternative Dispute Resolution

Legal International Arbitration

Alternative Dispute Resolution

What are your fees?

My usual fees are based on the amount in issue and the quantity of documentation Up to

£1500 (and up to 50 pages) £80 plus VAT

£1501-£2500 (and up to 80 pages) £110 plus VAT

£2501-£4000 (and up to 100 pages) £150 plus VAT

£4001-£5000 (and up to 120 pages) £175 plus VAT

£5001-£7500 (and up to 160 pages) £200 plus VAT

£7501-£10000 (and up to 200 pages) £225 plus VAT

For arbitrations over £10000 or where the parties want an oral hearing or where the remedy sought is not monetary I will provide a quotation on seeing the papers or case summary.

The amount in issue means the difference between the results each party seeks. So if the claimant is seeking £15,000 but the respondent has a counterclaim of £20,000 the amount in issue would be £35,000.

Documents

Papers should be sent to me at: my email.

info@international-arbitration.net

Payment method

I expect to be sent payment along with the case papers. It is for the parties to decide between themselves who pays what proportion of my fees. The liability to pay my fees is joint and several. That means each party is liable to me for the lot, if the other defaults. If I am sent a banker's draft, building society cheque or solicitors' client or office account cheque I will not present it until I have written the award. I present personal cheques as soon as I start considering the papers. It may be possible to pay by credit or debit card. If a case settles before I have started considering it, I will refund 50% of my fee. If I have already started considering the papers, I will consider a smaller refund depending on the amount of time I have spent working on the case.

Can the other party pay my costs?

Can you make the other party pay my costs? Section 61 of the Arbitration Act gives an arbitrator power to award costs. The parties may however reach an agreement on costs which overrides this power. Normally the same principles as are applied in the courts are followed. The losing party will usually be ordered to pay the entire arbitrator's fees, which may mean reimbursing the other party for the proportion they have already paid.

In claims over £5,000 costs of legal representation are normally awarded. If a party is unrepresented they are entitled to claim for their time in preparing the case at the rate of £9.25 per hour. In claims over £5,000 each party should send with the papers a summary of the costs it would like to be awarded if they are successful. I will normally award costs and decide on the amount when making my decision. If there are complex issues about the amount of costs I may order that they be separately assessed.

Online Video Workplace, Civil & Family Mediation

At Legal International Arbitration we are highly experienced in conducting online mediations for individuals & companies across the Europe and internationally. Location holds no boundaries where online/video mediation is concerned as we use the latest technology, and are able to use creative online platforms, to ensure our mediation sessions provide the highest quality of service. Our expert and highly accredited mediators will work with you to find practical solutions to your legal dispute with the aim of achieving a fair outcome for all parties involved without the need for expensive court proceedings. Through our online mediation service our mediators are able to work with you remotely wherever you are based.

Online mediation enables you to mediate in the comfort of your own home or workplace.

What is Online Mediation? 

For online mediations, we offer a range of options for our clients when it comes to video call applications. Where an individual has a smartphone or tablet device, video calls can take place by downloading a quick app or alternatively the video call can take place using a more traditional computer or laptop. Video calls can take place by the following methods: Zoom; Skype; Microsoft teams; Facebook messenger, Facetime or WhatsApp. As long as both parties have access to one of the above programs, we can facilitate an online mediation. Our preferred application is Zoom as this easily allows the sharing of documents and screen sharing.

How does online Mediation work?

Before mediation can begin, it is necessary in every case for each party to attend a Mediation Information and Assessment Meeting, more commonly known as a MIAM. At this initial session the mediator provides information on how mediation can assist, and each party has the opportunity to speak to the mediator alone and explain their current situation. At the end of the session, the mediator will assess whether they think mediation is a suitable means to resolve the dispute and each party will decide whether they would be willing to attend a joint session. If the answer from both the mediator and the parties is ‘yes’ then the mediator will make arrangements for a joint session between the parties and the mediator.

Where mediation is to take place online, we offer a range of options for our clients when it comes to video call applications.

Where an individual has a smartphone or tablet device, video calls can take place by downloading a quick app or alternatively the video call can take place using a more traditional computer or laptop.

Video calls can take place by the following methods:

Zoom;

Skype;

Microsoft teams; 

Facebook;

messenger; 

Facetime;

As long as a client has access to one of the above programs, we can facilitate an online mediation.

We will often suggest Zoom to our clients as this allows video conferencing with multiple people and it enables parties to share documents and screen sharing etc.

How to set up zoom?

If you would like to make an appointment through Zoom the mediator will email you an appointment slot and you will be sent a link. You can click on the link when the meeting is due to take place and you will be joined into the meeting. It is not necessary to download the app initially but it is advisable to familiarise yourself with the program. Once both parties and the mediator have joined the meeting, the three of you will be able to see and hear each other from your device.

The Online Financial Mediations

For financial mediation sessions, the parties will each submit their financial disclosure via email or through Zoom where appropriate and this will be shared with the other party. The mediator will discuss in the individual MIAM appointment the process of financial disclosure. It is most likely that the mediator will carry out some work to prepare documents such as an asset schedule before the joint session takes place in order to allow the session to be as productive as possible.

Online Shuttle Mediations

Some parties prefer not to have any face to face contact with their ex-partner during mediation and wish for mediation to take place on a shuttle basis. Traditionally, this is where the mediator goes back and forth between the parties in separate rooms. Shuttle mediations can also be offered online and the mediator will go back and forth via video call to each party.

Frequently asked questions

I will be in the house with my ex-partner and children, is online mediation appropriate?

As mediators we always encourage parties to ensure that any children are not privy to discussions surrounding their separation. The current situation is no exception to that. For mediation to work remotely, parties will need to ensure that children are not in earshot when the session takes place. For some this may be difficult with young children and the inability to ask others to watch them.

I live with my husband; can we log on together using one screen?

There is no reason why both parties cannot be in the same room using the same device if they both wish to do so. It is however important for both parties to respect the discussions which take place with the mediator present and when the video call ends refrain from continuing the discussion unless both parties wish to do so in which case they would need to report back to the mediator at the next session.

I only have limited access to the internet?

Unfortunately, without access to the internet or mobile data the video call cannot take place and other options may need to be explored before mediation can take place.

I am worried my ex-partner will simply talk over me and the mediator if we’re not round a table?

It is the mediator’s responsibility to manage the mediation room whether there is in person or virtually. Whether mediation takes place round a table or online, the mediator will ensure that both parties have an opportunity to be heard and that any power imbalance is dealt with appropriately.

I’m concerned that I may not be able to be as assertive on a screen than I would be round a table and end up agreeing to points that I’m not happy about.

In mediation, we encourage parties to reflect on discussions and not to feel pressured into reaching proposals without sufficient time to process the options. The same applies to online mediation sessions. We would therefore suggest that there is more than one session so that each party can consider the other parties proposals in their own time and also obtain independent legal advice. As with round table mediations, if you wish to involve your solicitor in the online mediation that can be arranged.

Fees and Pricing

How Much Does Mediation Cost?

We offer a range of fixed fee packages so that you can budget and costs are kept to a manageable level.

• Mediation Information and Assessment Meeting (MIAM) - £110 plus VAT (including supplying the C100 or Form A)

Mediation session (Joint mediation summary including comprehensive)

• Up to 60 minutes - £240 plus VAT

• Up to 90 minutes - £300 plus VAT

• Up to 120 minutes- £360 plus VAT

• Up to 150 minutes- £420 plus VAT

Letters sent during the mediation process confirming appointments and housekeeping arrangements – Free.

Mediator’s preparation time pre and post joint meetings (including going through financial disclosure forms, preparation of asset schedules and reviewing other documentation supplied by each party during the process) - £120 plus VAT per hour spent

Preparation of Open Financial Summary - £120 plus VAT

Preparation of Memorandum of Understanding - £240 plus VAT

Child Inclusive Mediation to include:

• Preparation meeting with the parents (30-60 minutes);

• Meeting with the child/children (30-60 minutes);

• Feedback session with the parents (30-60 minutes)

£480 plus VAT

Cancellation Fee if less than 24 hours. Set fee payable - £132

Online Mediation process Family

Family Mediation - How It Works?

Our accredited mediators are highly experienced and offer an all issues family mediation service covering children and financial aspects consequent upon your separation.

1- The family mediation process starts when we receive a referral from you, the other party or a solicitor acting on your behalf. You can make a referral by telephone calling us on +447793533288 or alternatively, you can email us at info@intranational-arbitration.net

2- We will then arrange for you to attend an online mediation Information and Assessment Appointment via Zoom. In the online meeting we explore whether mediation as a process can help you to resolve issues.

3- If you or the other party decides not to proceed with the mediation process then we sign the C100 form or Form A, which are the Court forms you would need to issue Court proceedings.

4- If you and the other party are willing and we agree that mediation can help you to resolve your dispute we set up an online joint session. At the joint session along with our accredited family mediator, you will explore options as to how you can reach important decisions for you and your family, whether in relation to children and/or financial matters.

5- Family mediation usually takes place over 2 -4 sessions depending upon the complexity of your issues and what is involved. Mediation is not an alternative to legal advice and we suggest that you speak to your solicitors in between sessions;

6- If you reach a consensus with family mediation then we prepare the mediation documentation, the Memorandum of Understanding and the Open Financial Summary which we send to you and to your solicitors to record the decisions reached.

Online Work place mediation

How It Works?

Workplace mediators follow a tried and tested structure that ensures confidentiality, impartiality and the safety of all participants throughout the mediation process whilst ensuring the highest probability of a successful outcome.

The Online Workplace Mediation Process

Individual Conversations: This is the first critical step in the process and it involves the mediator conducting an online meeting with each of the parties individually. Introductions are made, the mediation process is explained and the ground rules are clarified. It’s important to build rapport and to put people at ease, it gives people the chance to express themselves without fear of judgement and explain the situation that has brought them to mediation. The mediator will discuss emotions and acknowledge difficulties, establish what the individual wants to achieve from the mediation and seek agreement to precede with the process. If all parties, or the mediator, are not happy to continue with the mediation it doesn’t go ahead, it has to be a voluntary process for it to be effective.

Preparing Work on Dispute: Mediation is hard work and it isn’t the right solution for every situation. During this stage the mediator will reflect upon the case and decide if it is possible to proceed and if so what the best approach would be. This may mean shuttle mediation, co-mediation or group online mediation. The mediator will also decide whether they are the best mediator to lead the case and where and when would be the best time to do it. Once these decisions are made, diaries can be booked and the mediation progresses to the next stage.

Group Conversations: This is the first time that all of the parties are brought together in an online meeting, normally via Zoom, and it can be highly charged. The mediator controls the online meeting with clear objectives in mind. They remind everyone of the ground rules, especially around keeping the conversation professional and giving each other time to speak by not interrupting. Each person has an equal amount of time to express their opinion and expectations and to listen to the other person’s point of view. This can be very difficult and it is usual after this stage to take a short break.

Exploring& Working on the Issues: The mediator will lead the conversation, summarising the points made by both parties and developing an agenda for discussion that both parties can agree upon. It can take quite a long time to decide what the agenda points are, which ones are important to both parties and which can be left for now. Usually there would be three or four key agenda points. It is during this step that people tend to stop talking through the mediator and start talking to each other, however briefly. For many people in this situation this may be the first time they have spoken to each other directly for weeks, months, or even years. Getting to this step is great progress.

Building Agreements: Working from the agreed agenda the mediator now facilitates the negotiation and discussion. Ideas are discussed, offers or concessions are made and options are considered. It isn’t all plain sailing though and the mediator does need to keep everyone on track, holding the ground rules and checking the reality of any decisions. There can be sticking points and the mediator checks with the parties about alternatives and encourages solutions. It is useful here to reflect on what might happen if there is no agreement on the point. The consequences of not reaching agreement often spur the parties on to find new ideas or make compromises. Having worked so hard through the sessions it is usual, though not guaranteed, for people to finally reach agreement about most or all of the points that they need to. The mediator helps them to draft an agreement to put all of the decisions in writing, which they each sign up to.

Closure & Follow-up: In writing the agreement there is a discussion about who the details will be shared with, for example HR or the line manager, and what specifically will be shared, if anything. The parties also decide if a follow-up period is required and what they will do if either of them stops honouring the agreement. The mediator will advise the sponsor of the mediation about the overall outcome, i.e. if an agreement was reached, if the details of the agreement are being shared and when they will be following up with both parties to see if agreement is working or if further support is required.

Keeping Costs Manageable

At Legal International Arbitration we speak to you first to assess your needs and quote on a case by case basis.

The quote may vary depending on a number of factors for example:-

• 1. The number of participants

• 2. Number of mediators

• 3. Location

• 4. Duration

By way of a general guide price we are normally able to conduct a half day mediation for around £350 -£500 plus VAT and a full day at £650- £900 plus VAT.

Set against the potential costs and losses of an on-going dispute at work for example by way of sickness absences, lengthy grievance processes, damaged morale, low productivity and also taking into account the potential litigation costs saving should matters remain unresolved (which could be in the thousands) this up front spend could ultimately save your business financial costs but also further damage to workplace relations.

We appreciate that funding may not be allocated in your business for matters such as mediation but we recommend you take a broader view of the long term effects on your business of not resolving the dispute or issues would particularly if you have valued team members who you have invested in and who you wish to retain.

Civil Mediation - The Online Process

Civil and commercial mediation offers you the chance to resolve your dispute privately without going to court. It saves time. It saves money. It saves stress. It is not possible to predict with 100% certainty what the outcome of a court case will be. Mediation gives you certainty because you can negotiate the solution to your dispute, not the judge. With the help of the mediator, you can create and agree a legally binding solution that will bring your dispute to an end so you can move on.

At Legal International Arbitration we speak to you first to assess your needs and quote on a case by case basis. We will be pleased to offer a fixed fee for full day mediation (typically 10am until 6pm). An hourly charging rate of £200 plus VAT will be charged for additional time if the parties wish to continue the mediation after 6pm.

The fixed fee will include: Telephone calls with the solicitors or parties involved to identify the key issues, discus preparation and to set up the mediation for the parties; Reasonable preparation time (up to 4 hours);

The making of arrangements for the mediation including settling the agreement to mediate and other related documentation and correspondence.

The first 8 hours on the mediation day; and Any follow up which may be required by phone or email, limited to a further hour The longer you remain in dispute, the more it is going to cost. As we emerge from lockdown, your case will be in a backlog of cases waiting for court hearings. The potential costs of failing to resolve your dispute are open ended – you will incur legal fees when you prepare your case for court and at the hearing itself and the Court is able to dictate how the costs of the case are to be met. Mediation is cost effective, quantifiable and allows you to resolve the dispute on your own terms so you can get back on with your life.

 

Litigation Costs

Litigation Costs: Recoverability A key element of any dispute is understanding the costs involved. It is not only important to budget for the potential spend, but also to understand: the constituent parts comprising the total costs of the dispute; when they are likely to be incurred; and the extent to which such costs may be recoverable. The costs of a dispute do not only include legal fees (whether in respect of lawyers, counsel and/or advocates), but also include costs incurred in relation to: - court, arbitrator and/or arbitration centre fees; - expert reports and evidence (technical, legal or otherwise); and - various disbursements (such as translation, document management, travel and accommodation expenses). Therefore, when planning the pursuit of any claim, a costs/benefit analysis will be necessary. It is of course difficult, due to the uncertain nature of disputes, to predict the likely costs exposure, but in principle the exercise is useful nonetheless, especially in circumstances where parties are unable to recover their costs. If costs are potentially recoverable, it is important from an early stage to keep clear records of the costs incurred. A party will need to determine what its total spend is over a period of time and ensure it is able to: budget accordingly; and evidence those costs when required. One of the many considerations when drafting dispute resolution clauses is understanding whether the choice of jurisdiction for a dispute allows for parties to recover their costs incurred during a dispute. In terms of recoverability, the short answer is that the costs of a dispute are not always recoverable and where they are recoverable, it may not be the case that all of them are. The recoverability of costs typically depends on a number of factors, including: - the jurisdiction in which the dispute takes place; - the degree of success of claims/defences; and/or - the conduct of the parties in the dispute

Are there any further terms dealing with your instruction?

The Arbitration Act sets out the basis on which an arbitrator is instructed. I believe that this website in conjunction with the Act fully sets out the terms and conditions on which I am prepared to act. I do not see the need for any "small print" making the contract obscure or over-complex. By instructing me you agree to these terms.

Specialist in the following services

Divorce Mediation

Mediation is the most efficient and cost effective way to resolve family law conflicts with divorcing couples. Mediation saves you money by having both parties using the SAME IMPARTIAL mediator to help you reach resolution without the emotional trauma. Before calling in a divorce lawyer and the expense that entails try the non-confrontational path of mediation. If you are separating or divorcing you need to make a number of vital decisions about the future. Divorce mediation can help you with such issues as:

•Division of your assets;

•A Parenting Plan: arrangements for the care of your children;

•Child maintenance payments,

•The financial implications of your break up.

Mediation can help you stay in control. No-one will make you do anything against your wishes. The mediator will help you find a solution which works for all parties concerned and explain how you can make an agreement legally binding. If you go to court to sort out your issues, the judge will make the decisions. You will need to stick to these decisions even if one or both of you feel unhappy about them

Family Mediation 

Family mediation helps family members:

married and unmarried, parents, grandparents, step-parents and young people can all take part. Family mediation assists in resolving issues such as:

•strained relationships between family members;

•the impact of a family’s immigration or relocation;

•financial disputes, for example in a family business;

•maintenance disputes;

•problems between step-parents and their step-children;

Family Mediation can also be used to help with other problems you might face, for example, your children keeping in touch with their grandparents or extended family. Mediation can especially be helpful post-divorce when arrangements you’ve made before need to be reviewed due to changing circumstances.

Parenting Plans

The Children’s Act offers parenting plans as a method to assist parents with how to effectively co-parent after separation or divorce. A parenting plan sets out how parents will exercise their respective responsibilities and rights. It must comply with the best interests of the child principle as set out in the Act, and must include the following issues:

•where and with whom the child is to live;

•the maintenance of the child;

•contact between the child and any other person; and

•the schooling and religious upbringing of the child A parenting plan is essentially a roadmap directing how children will be raised after separation or divorce. As a co-parenting solution, it is a written agreement drafted by both parents with the help of a mediator. The Act requires that children also be consulted when such a plan is drafted so that they have an opportunity to give their input on living, care and contact arrangements. Once the plan is finalised, it is signed by both parents. Parenting plans need to be regularly reviewed, as children’s developmental needs change over time. During the drafting phase, the mediator will explore all aspects of family life, focusing on what is in the best interests of the children and, together with the parents, will determine things such as whether primary or shared residency is the best option for the children, how often and when each parent will see the children, which religion the children will be brought up in, which schools they will attend and where the children will spend holidays. In addition, the plan may specify how parents will communicate with each other and the child, and how new partners will be introduced. Developing a parenting plan is an essential part of the divorce process. Although parenting plans can be drawn up at any stage in a separation or divorce, it is advisable that matters relating to children be sorted out sooner rather than later. It is important for children to have plenty of access to both parents. There are an infinite number of possibilities available when drawing up a parenting plan. Jobs, schools and a variety of other factors must still be taken into account. The bottom line is to find a plan that works for the whole family. Remember that parents can still participate in their children’s lives even when they are living elsewhere or does not have frequent or equal contact with them. Parenting plans should minimise loss and maximise relationships for children. Ultimately, the role of parents is to cooperate and to provide as many opportunities for their children as possible. Parents’ divorce each other, but never their children.

Workplace Mediation

Workplace mediation is a voluntary and confidential process in which an impartial mediator works with individuals who are in conflict to explore, and understand their differences with a view to re-establishing and improving their working relationship. Typically, employers don’t want to lose their valued staff and employees don’t want to lose their job. When managers and HR notice changes in staff behaviour, attendance and work quality, this might be the result of anxiety and stress caused by staff relationship issues. Workplace mediation is most appropriate early in the life of the conflict, where the people involved want to improve their work situation and are committed to resolving the issues. Workplace mediation attempts to prevent conflicts turning into CCMA disputes and as such has a strong facilitative and transformative aspect, whereby emphasis is given to understanding and improving communication between the parties to the conflict. An important role of the mediator is to work with the parties together; to help them effectively engage with each other and facilitate the difficult discussions that are necessary in order to rebuild their relationship and be able to work more constructively in the future.

Workplace mediation as an informal dispute resolution process can be used to help resolve issues such as:

•poor performance

•staff absenteeism

•issues of diversity, discrimination and values

•bullying and harassment

•organisational change

•incompatibility or personality clashes

•conflict arising from mergers and acquisitions

•disputes between and within teams.

Workplace mediation can also be used before or after formal complaints, investigations, grievances or disciplinary proceedings.

Financial Disputes

Financial disputes can arise anywhere. Within families, between businesses partners, post-divorce, between neighbours. Where there are people, money matters can become an issue. If you are considering litigating your financial dispute, think again. The legal costs might exceed the amount you are arguing about. There is always a way to negotiate a mutually acceptable solution to a financial problem.

Drafting Contracts

What is Contract Drafting?

A contract is legally binding agreement. Contracts may be written or oral, but many important contracts are often written and signed by both parties. Contracts are the foundation of the business world, and may be simple or extremely complex. Examples of contracts include sales agreements, real estate purchase contracts, employment contracts, confidentiality agreements, finder’s agreements, or insurance contracts, to name a few. Drafting a contract is the act of writing out the terms and details of the contract, in order to outline the legal obligations of the two parties, so that they fully understand the terms of the agreement and their respective duties towards one another. Contracts may be drafted by anyone, but an attorney is often needed in order to create a reliable and secure contract, especially for more complex contracts. For example, you may want an attorney to help you draft or review a contract involving a real estate transaction, in order to ensure your finances and the transaction itself are protected. Additionally, you will want a clear outline on the possible consequences, should the contract be breached.

How are Contracts Drafted?

Contracts may appear in many different forms, but one of the most common contracts is a standard form contract. A standard form contract (standardized agreement), sometimes referred to as an adhesion contract, is a contract between two parties, where the contract is drafted by one of the parties, and the other party has little or no ability to negotiate terms that are more favorable for them. Common examples of adhesion contracts include: insurance policies, housing/apartment leases, and tickets to events. For instance, if you attend an event, such as a football game, there will likely be small print on the back of the ticket containing the terms that you are bound by, due to your purchase of the ticket. Thus, in order to allow for negotiations, many people choose to loosely base their own agreements on standard form contracts, instead of simply following a pre-set form contract. The overall goal of drafting a contract is to ensure that each party thoroughly understands the terms and conditions in the contract. Therefore, the person drafting the contract should use clear and simple language, as much as possible. A contract full of legal terms and concepts is often not a good idea, as it could raise questions regarding the rightful interpretation of the contract, as well as if there was a “meeting of the minds”, or mutual agreement between the two parties. Thus, if any words or terms are not easily understood, you should ensure to find out what they mean. If you are unsure as to your duties under the contract, don’t be afraid to ask, as it is very important for you to understand what you are committing to.

What is Contract Review?

Simply put, contract review is when a person signing the contract carefully reviews the document or has their lawyer review the document. As noted above, this is to make sure you fully understand the terms and conditions of the contract.

Contract review is an important step to ensure that there are less contract disputes in the future. When a contract dispute arises, the first thing that the courts look at is the language of the contract itself. If a problem were to arise, both parties can refer to the contract and pinpoint what is expected of them.

A clearly-written and easily-understood contract can reduce confusion between the parties. However, if a contract is not written clearly, legal issues may arise. Thus, it is important to thoroughly review or have an attorney perform a complete review of any contract, before you sign it.

Since contracts can be lengthy, and have become increasingly complex, many people often skim over paragraphs and don’t actually know what they are signing. For example, most people do not understand what they are agreeing to when they “accept the terms and conditions” of most online “click wrap” agreements for software. Having a qualified business lawyer review your contract or contract draft may save you from a legal mess down the road.

There are numerous reasons why it is important to thoroughly review a contract, including:

- Understanding the Terms of the Agreement: It cannot be said enough, you need to know exactly what you and the other party are signing. Terms and conditions should be clear, leaving no doubt as to what is expected of you and the other party;

- Preventing Unconscionable, Illegal, and Voidable Contracts: No one wants to get in trouble, especially with the law. Unconscionable contracts occur when a contract is so one-sided that it is enforceable under the law. Additionally, there are many contracts that are illegal to make, such as a contract that was made for an illegal purpose, like gambling or hiring underage workers. Lastly, you often want to ensure that any contract you enter into is solid and not voidable, like contracts entered into with minors. Thus, it is important to review the contract, in order to make sure all aspects are legal, and that you are fully protected; or

- Preventing Breaches of Contract: By having your contract reviewed now, you may save yourself legal problems down the line. If there is a disagreement, a proper contract review will enable you to have solid documentation to protect yourself.

Breach of Contract

A contract is a legally binding promise made between two parties. Each party to a contract promises to perform a certain duty, or pay a certain amount for a specified item or service. The purpose of a contract being legally binding is so each party will have legal recourse in the event of a breach.

A breach of contract occurs when the promise of the contract is not kept, because one party has failed to fulfill their agreed upon obligations, according to the terms of the contract. Breaching can occur when one party fails to deliver in the appropriate time frame, does not meet the terms of the agreement, or fails perform at all.

Further, if one party fails to perform while the other party fulfills their obligations, the performing party is entitled to legal remedies for breach of contract.

There are four main types of contract breaches:

1- Minor Breach: A minor breach of contract occurs when a party fails to perform a part of the contract, but does not violate the whole contract. To be considered a minor breach, the infraction must be so nonessential that all parties involved can otherwise fulfill any remaining contractual obligations. A minor breach is sometimes referred to as an impartial breach;

2- Material Breach: A material breach of contract is a breach that is so substantial, it seriously impairs the contract as a whole; additionally, the purpose of the agreement must be rendered completely defeated by the breach. This is sometimes referred to as a total breach. It allows for the performing party to disregard their contractual obligations, and to go to court in order to collect damages from the breaching party;

3- Fundamental Breach: A fundamental breach of contract is essentially the same as a material breach, in that the non-breaching party is allowed to terminate the contract and seek damages in the event of a breach. The difference is that a fundamental breach is considered to be much more egregious than a material breach; and

4- Anticipatory Breach: An anticipatory breach occurs when one party lets the other party know, either verbally or in writing, that they will not be able to fulfill the terms of the contract. The other party is then able to immediately claim a breach of contract and pursue a remedy, such as payment. Anticipatory breach may also be referred to as anticipatory repudiation.

What is the Difference between an Oral Contract vs. a Written Contract?

What is the Difference between an Oral Contract vs. a Written Contract?

An oral contract is a contract in which the terms are agreed upon verbally, whereas a written contract is a written document.

Generally, oral contracts are enforceable and legally binding; however, not every type of contract can be enforceable when they are oral as opposed to written. Some specific types of contracts must be in writing in order to be enforceable. These may include:

• Contracts involving the sale or transfer of land;

• Promises to pay someone’s debt obligations for them;

• Contracts that cannot be completed within one year of the creation of the contract;

• Contracts involving the sale of goods for more than five hundred dollars; or

• Contracts that will extend beyond the lifetime of one of the involved parties, therefore leaving the terms and conditions of the contract in the sole knowledge of the living party.

Thus, if you are selling your car for more than five hundred dollars, a simple verbal agreement will not be enforceable; instead you will need to draw up a written contract.

What can be done about a Breach of Contract?

The type of legal remedies available for breach of contract depends largely on the severity of the breach. Generally, damages awarded are categorized into four groups:

• Compensatory Damages: Compensatory damages are those that compensate the non-breaching party for their losses. This is the most common legal remedy, and a court can order the breaching party to pay the non-breaching party enough money to get what they were promised by the terms of the contract;

• Restitution: If the non-breaching party is able to prove that their loss is due directly to the actions of the breaching party, a judge may order restitution, which could include lost wages, medical bills, and property repair and/or replacement;

• Punitive Damages: Punitive damages are generally awarded alongside compensatory damages. The purpose of punitive damages is to punish the breaching party when they have engaged in particularly egregious behaviour in order to breach the contract, such as being intentionally negligent; or

Specific Performance: Specific performance is utilized as a legal remedy for breach of contract, and it requires the breaching party to perform their part of the contract. Specific performance is not always available

If there has been a breach of contract, you should first thoroughly review the contract to see if any instructions regarding a breach were built into the contract. Mandatory arbitration or liquidated damages clauses are two examples of such instructions.

Second, you should let the other party know that there has been a breach. If you committed the breach, it is better to own up to it before it is found out, which could lead to more serious consequences. If the other party committed the breach, it is best to give them an opportunity to rectify the situation before taking legal action.

It is highly important that you maintain any documentation related to the contract. Carefully record every incident that occurs as a result of the contract. Doing so will make it easier to argue your side should the breach result in legal action.

Adjudication

Adjudication is a judgmental process. The contractual rights and the facts at issue in a dispute are considered by an independent third party, who is paid by those in dispute, and he gives a decision which is temporarily binding - a similar process to Arbitration but without the difficulty associated with finality. Adjudication will be a statutory right under the Construction Contracts.

Otherwise, it is a contractual right to have a dispute decided by an independent party who is either agreed or nominated. Crucially the decision is reached quickly and it is binding on the parties at least on an interim basis. Adjudication is often described as fast but rough justice.

How does the Adjudication process work?

The first stage (as with any judgemental process) is to crystallise the dispute. Usually this is by one party making a claim for or about something which is rejected or not accepted by the other and which the original is determined to maintain.

The first formal step it to notify the other side that the matter is going to be referred. This can be done by a simple letter although some contracts have some formal requirements for the notice (such as the nature of the redress sought and the time and place the dispute arose). Then an adjudicator is appointed either by agreement or by an Adjudicator Nominating Body.

The dispute is then “referred” to him. This involves giving the adjudicator all the information the Referring Party things necessary for him to understand and decide the dispute. The appointment process must allow an adjudicator to be appointed and the dispute referred with 7 days – a very short period.

The adjudicator then has 28 days to reach his decision. He sets his on procedure but he must give both sides a fair hearing and an opportunity to answer contentions made against them. The period can be extended by 14 days by the Referring Party or longer by agreement between the parties. Because adjudication is only a temporary measure to ensure cash flow it is not confined by the strict rules of natural justice that make arbitration and litigation slow and expensive.

Once the decision is reached, the parties must comply whether or not they object to the decision and pursue the matter through arbitration. It is a “pay now argue later” process.

Where is adjudication appropriate?

Adjudication is most commonly used in the construction industry to decide contractual disputes. Usually, adjudication is by far the most popular method for resolving contentious construction issues. It is ideally suited to technical or single issue problems but can be used for anything.

Industry Suitability to Adjudication

Adjudication is most often used in the Construction industry. However, it can be used in almost any situation where a fast temporarily binding result is desired.

Time and Costs

The timescale for adjudication is short - 28 days or 42 usually although longer if the parties agree. Therefore it is relatively inexpensive. Typically £2,500 to £6,000 for Adjudicator fees would be common for a typical construction dispute.

Final and Binding

Adjudication is not finally binding but the decision must be obeyed in the interim. So it is pay now argue later. However, over 95% of issues referred to adjudication do not result in arbitration or litigation. It is very successful.

 

Conciliation

Conciliation is a process similar to mediation whereby the conciliator seeks to facilitate a settlement between the parties. Under the industry defined procedures for conciliation, the conciliator is obliged to issue a recommendation for the resolution of the dispute if the parties fail to reach settlement.

How does the process work?

Conciliation usually arises out of a clause in a construction contract whereby the parties agree to attempt to resolve their dispute through conciliation. The clause provides for the conciliator being appointed by the agreement of the parties or by a specific institution.

A hearing usually takes place for the purpose of concluding the conciliation shortly after these opening statements are delivered.

The conciliator will attempt to facilitate a settlement between the parties. If this cannot be achieved he will publish a recommendation setting out the basis on which he believes the dispute should be resolved.

Appropriateness of Conciliation to a dispute

In theory there is no reason why conciliation cannot be availed of in relation to almost any dispute apart from family or similarly sensitive issues in respect of which mediation may be more appropriate.

In practice however conciliation is rarely availed of in some countries except in relation to disputes in the construction industry.

Industry Suitability to Conciliation

This form of conciliation is peculiar to some other countries and is the creation of the construction industry. It is almost exclusively used within that industry. Outside of the construction industry, mediation (which does not involve any form of recommendation), is more commonly availed of for dispute resolution.

Time and Cost

The conciliator is obliged to conclude the process within forty-two days of his appointment unless the parties agree otherwise.

The usual practice is that each party bears its own costs and pays one half of the conciliators fees irrespective of the outcome. Compared with Court Litigation or Arbitration, the cost is relatively small.

Final & Binding

If the parties reach settlement, that settlement is reduced to writing and signed on behalf of the parties. It then becomes final and binding. If settlement is not achieved, and the conciliator issues a recommendation, that recommendation will become final and binding as between the parties unless one of them rejects the recommendation within a specified number of days.

Confidentiality

If the conciliator’s recommendation is rejected, the entire procedure is to be regarded as confidential and neither party can refer to anything that occurred in the conciliation or call the conciliator as a witness in any proceedings.

ADR Schemes

The claimant (or his/her representative) requests the appointment of an Arbitrator to the dispute matter. This application will include a brief description of the dispute, a copy of the original contract, an administration fee, and any other documents that are relevant to the dispute matter. The Institute writes to the Respondent and requests the payment of the capped Arbitrator's fee in the sum of €1,300 plus VAT. On receipt of this payment the Chairman proceeds to appoint an Arbitrator to the matter who will contact the parties directly.

Early Neutral Evaluation

ENE is a preliminary assessment of facts, evidence and legal merits. This process is designed to serve as a basis for further and fuller negotiations, or, at the very least, help parties avoid further unnecessary stages in litigation. The parties appoint an independent person who expresses an opinion on the merits of the issues specified by them. It is a non-binding opinion but provides an unbiased evaluation on relative positions and guidance as to the likely outcome should the case be heard in court. It is a hybid form to assist dispute resolution.

Dispute Boards

Dispute Adjudication Boards, etc.: These provisions are well suited to larger complex projects running to longer timeframes. The “Board “ is appointed by agreement at the outset. It can comprise a single Member or a board of three. Disputes which arise in the course of the works can be resolved to a short timeframe in line with the contract provisions - to smooth the flow of the longer timeframe transactional business.

Judicial Appraisal

A UK procedure, where the parties appoint a serving judge through their Courts Service to receive written representations from each side and to make an appraisal of the likely result if the case was to go court. The parties must agree the form and extent of submissions and whether the appraisal is to be binding or not. As far as we know, Conciliation by experienced Mediator Arbitrators with legal and sectoral knowledge is regarded as more promising.

Med-Arb and Arb– Med

These hybrids, as the titles suggest, involve a fusion of Mediation and Arbitration skillsets. In the former, issues are narrowed through Mediation for determination by Arbitration and in the latter, visa versa for mediation of remaining unresolved issues. Again, Conciliation is regarded as more promising.

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