- Prompt: Discuss the different types of alternative dispute resolutions including, negotiation, mediation, and arbitration. For example, which form of ADR is binding and which is not?
- Requirements: 250 words minimum initial post
Prompt: Discuss the different types of alternative dispute resolutions including, negotiation, mediation, and arbitration. For example, which form of ADR is binding and which is not?Requirements: 250
MBA/MSL 646 The Legal Environment of Business Belhaven University Unit 1 The Judicial System and Managing Disputes An overview of legal obligations and requirements facing organizational leaders. Historical review leading up to our current jurisprudence system along with its biblical roots is examined. Torts, contracts, human resources regulations on state and federal level, legal responsibilities for management as an agent of the organization are representative of topics covered. 2 Welcome to The Legal Environment of Business Introduction Class Topics Class Objectives Lecture 3 Format for Unit Sessions Class lectures Hearing and seeing Textbook Reading Individual homework Analyzing Discussion forum Applying and examining Completing all components is very important to accomplish the objectives of the course. 4 Learning Tools Characteristics Online learners must be highly self -motivated. Online learners must have high responsibility for assignments and discussions. Facts Online learning is not easier than traditional classroom learning. Learners must meet deadlines. It’s easy to think we’re anonymous because there’s no face time. 5 Online Learning Course Page Activities Individual homework Discussion forum Weekly discussions Media Module Handouts & links Class lectures Schedule Be attentive to deadlines. The week (unit) begins on Sunday and ends on Saturday. Observe Sabbath Manage your time 6 Tips for Success Communicate Ask questions Participate Be engaged in discussion Seek handouts Contact the professor with questions or problems 7 Tips for Success, cont. Explain and understand what the law is, the judicial system, know where to find the applicable law, and be versed in how legal disputes are resolved in and out of court Understand the Constitutional limits placed on business activity and the effect of the Constitution on business decision making Understand the various laws regulating business and how business works to comply with these laws 8 Course Objectives Identify situations where a business and/or its employees may be “guilty” or “liable” in the event a crime or tort is committed by an employee on behalf of a business Have a general knowledge of the laws regulating advertising and products liability, and understand the methods and procedures involved in a sales transaction Identify and describe the rights and responsibilities involved with the types of property owned by a business, including: real and personal property; intellectual property; and property involved in international business transactions 9 Course Objectives Understand the various issues involved in contract formation, remedies for breach, and defenses to breach of contract Discuss the rights and duties involved in the employer – employee relationship relative to such issues as: hiring and firing; business decision -making; workplace safety; hours and work conditions; union relationships; antidiscrimination laws; and compensation Identify the legal and practical issues involved in forming a business and the various types of businesses Understand the various federal and state securities laws 10 Course Objectives Special topics in civil procedure: structure and hierarchy of the various courts, jurisdiction, and international courts Methods of alternative dispute resolution Process and stages of litigation 11 Unit Topics Biblical Foundation Romans 13:1 -4 (1) Let everyone be subject to the governing authorities, for there is no authority except that which God has established. The authorities that exist have been established by God. (2) Consequently, whoever rebels against the authority is rebelling against what God has instituted, and those who do so will bring judgment on themselves. (3) For rulers hold no terror for those who do right, but for those who do wrong. Do you want to be free from fear of the one in authority? Then do what is right and you will be commended. (4) For the one in authority is God’s servant for your good. But if you do wrong, be afraid, for rulers do not bear the sword for no reason. They are God’s servants, agents of wrath to bring punishment on the wrongdoer. Types of Courts Trial courts – courts of record Circuit Courts Civil matters where the amount in controversy is over a stated amount and criminal law matters Chancery Courts All matters in equity; divorce and alimony; wills and estates; minor’s business; cases of idiocy, lunacy, and persons of unsound mind Specialty Courts Justice Courts Small claims courts Appellate Courts Publishes opinions in Reporters Examples: Mississippi State cases – Southern Reporter 5th Circuit cases – Federal Supplement How Courts Make Decisions Judicial Review Marbury v. Madison , 5 U.S. 137 (1803) CJ John Marshall – It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each.” Check for reversible errors of lower courts Process File notice of appeal Record Briefs Appellate courts must agree to review the case by vote – oral arguments Statutory Interpretation Executive Review How Courts Make Decisions, cont. Judicial Review, cont. The Doctrine of Stare Decisis – “let the decision stand” Examination of prior cases (case precedent) Lawyers act as advocates Case similarity Distinguish the case if necessary When may judges depart from case precedent? When there is good cause shown Examples of precedent followed in the Bible Parties Plaintiff Defendant Appellant/Petitioner Appellee/Respondent Lawyers Attorney -Client Privilege Duty to clients Ethical duties to the profession Duties to self Judges Jurisdiction Jurisdiction – authority of the court to decide a case Subject Matter Jurisdiction State v. Federal Jurisdiction Specialty Courts: Tax Court; Bankruptcy Court; U.S. Claims Court; U.S. Court of International Trade; Indian Tribal Court Personal Jurisdiction In Personam Jurisdiction Minimum Contacts Test from International Shoe v. Washington , 326 U.S. 310 (1945) Purposeful availment and foreseeability “at home” Domiciled/Principal Place of Business In Rem Jurisdiction Administrators of Tulane Education Fund v. Cooley , 462 So. 2d 696 (Miss. 1984). International Jurisdiction (ICJ) Venue – location of the court within the jurisdiction Ex: Hinds County Circuit Court Alternative Dispute Resolution (ADR) Binding v. Nonbinding ADR Mediation Submit “confidential settlement memorandum” or “position statement” Voluntary or court ordered Non -binding Mediator works to bring about a settlement agreement between the parties Everything said during mediation cannot be offered as evidence at trial Arbitration Subject to Federal Arbitration Act (FAA) and the Rules of the American Arbitration Association Submit claims and supporting evidence to a third party who renders a binding decision Oldest form of ADR Binding ADR, cont. Arbitration Advantage Less formal U sually faster than trials H andled privately; cases handled by arbitrators Arbitration Disadvantages Arbitrators may not have legal training R ules of evidence usually do not apply U sually subject to confidentiality agreements ADR, cont. MedArb Arbitrator first acts as a mediator and attempts to mediate a settlement. If the parties do not settle the dispute, the arbitrator then acts as an arbitrator and decides the outcome of the case. Minitrial This is a small scale non -binding trial where parties present evidence to a neutral third -party or judge who advises the parties of the strengths and weaknesses of the case and prepares a settlement proposal based on the trial. Rent -A -Judge Parties pay for a judge to adjudicate the case in a private courtroom setting. This brings about a quicker adjudication. ADR, cont. Peer Review Employees have a manager’s actions reviewed by peers. Summary Judgment Trials Parties present evidence to a judge and jurors. Jurors give their advisory opinion in an effort to spur settlement. Early Neutral Evaluation A paid third party hears the positions and evidence from both sides and gives an advisory opinion of the likely o utcome of the case, advancing settlement. International Disputes International Chamber of Commerce (ICC) Is a private organization that has handled disputes since 1922 Typical disputes include: Trade transactions, contract disputes, intellectual property disputes, agency and corporate law disputes – business disputes Judgments are final Payment of judgment must be made at the hearing location Centre for Settlement of Investment Disputes (ICSID) International arbitration for foreign investments Litigation vs. ADR Litigation 7 th Amendment to the US Constitution … where the value in controversy shall exceed twenty dollars, the right by jury shall be preserved … Expensive; follows procedural rules; follows discovery rules; follows rules of evidence; follows local rules for the specific court; time consuming; trials are public ADR Less expensive; does not follow traditional practice rules; quicker decisions; private proceedings – no public record of the decision or evidence presented The Litigation P rocess Pleadings Complaint (filed by the Plaintiff); Answer (filed by the defendant); Counter -claim; Cross -claim Discovery Request of Admissions; Interrogatories; Depositions; Request for Documents and Examinations Pretrial Motions; Pretrial Conference Trial Opening Statements; Plaintiff’s case -in -chief; Defense’s case -in – chief; Closing Statements Post -Trial Motions; Appeal The Litigation Process, cont. Step 1: File the Complaint A general statement of the claim must be filed in the appropriate court within the statute of limitations Must describe actions that led to the claim Must establish jurisdiction and venue Must contain the prayer for relief Step 2: Complaint and the Summons Served on the Defendant Summons is the legal document from the court that requires the defendant to defend himself Served by an officer of the court or by a paid process server; service by publication rarely accepted Step 3: File the Answer Must file the answer within a specified amount of time Failure to appropriately file the answer results in a default judgment Defendant can admit or deny allegations Defendant can include a counter -claim against plaintiff The Litigation Process, cont. Step 4: Dispositive Motions Motion for Judgment of the Pleading vs. Motion for Summary Judgment (Rule 56) MFJP is filed on the basis that there are not material issues of fact to be resolved and the party is entitled to a judgment as a matter of law. MSJ is a request for the court to rule that there are no facts at issue and therefore the case should not go before the jury. Motions to Dismiss Example: Motion to Dismiss for Failure to State a Claim for which Relief May be Granted (12(b)(6)) Example: Motion to Dismiss for Improper Service of Process Example: Motion to Dismiss for Lack of Jurisdiction The Litigation Process, cont. Step 5: Discovery The disclosure, by a party, of relevant documents Request for Admissions – admit facts in order to limit trial time Interrogatories – written question submitted to the opposition for answers Depositions – statements made under oath upon questioning from the opposition Request for medial examination (mental or physical) Request for inspection of physical items Work Product NOT discoverable Motion for Summary Judgment The Litigation Process, cont. Step 6: Trial Jury Trial 7th Amendment Right Under the US Constitution Absolute right in Criminal Proceedings Jury selected from voting lists Voir Dire – process of jury selection Questions are asked to the jury pool in order to narrow eligibility Challenges for cause (bias) -unlimited Challenges without case (peremptory) -limited in number (usually 3) and cannot be made for race or gender Opening Statements – summary of the case and theory of the case from each side (defense may choose to delay) Plaintiff’s case Presentation of plaintiff’s witnesses and evidence Cross examined by the defense The Litigation Process, cont. Step 6 (cont.): Trial Motion for a Directed Verdict – the defense asks the court for this motion when it believes that the plaintiff has failed to prove all the necessary elements of its case Defense’s case Defense presents its evidence and calls its witnesses Plaintiff cross examines Closing Arguments – each side summarizes the case; last chance to persuade the jury Jury Instructions – judge explains the law to the jury and puts it in a form that that the jury can apply; lawyers have input in the instructions Jury Deliberation – jurors retire to discuss the case Criminal cases – unanimous decision required Civil cases – most states allow for a majority decision, not unanimous If jury is unable to reach a verdict, then it is declared a mistrial Can request that the jury be polled The Litigation Process, cont. Step 6 (cont.): Trial Post Trial Motions Motion for a Judgment not Withstanding the Verdict (JNOV) is now called a Judgment as a Matter of Law Asks the judge to reverse the jury’s verdict Rarely granted Motion for a New Trial Asks the judge to grant a new trial based on an error or inappropriate action by one of the parties Step 7: Appeal Generally granted for Errors of law by trial court Newly discovered evidence Misconduct by a party Types of Evidence/Testimony Burden of Proof – the obligation to prove one’s assertion Criminal Cases – beyond a reasonable doubt Civil Cases – by a preponderance of the evidence Direct Examination – when one party questions its own witnesses Cross -Examination – when one party questions the opposition’s witnesses Redirect Examination – the initial party has the opportunity to re – examine witnesses after cross -examination Expert Testimony – testimony made by a qualified person about a scientific, technical, or professional issue in the case. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Hearsay Testimony – is an out of court statement, made in court, to prove the truth of the matter asserted. Generally not admissible Exceptions to Hearsay (almost 30 exceptions) Example: Dying Declarations International Litigation Which country’s laws apply? Rule: Foreign citizens may not come to the U.S. to benefit from our courts when there is adequate remedies in their own country. Additionally, if the point of injury was in a foreign country, then the plaintiff must bring their claim in that country. – OBB Personenverkehr A.G. v. Sachs , 136 S.Ct . 390 (2015). To procure service of process outside the U.S., you must serve through the United Nations to those entities that reside in countries that are members to the Hague Convention . Complete reading assignments Complete writing assignments Answer discussion questions Complete unit quiz 33 What’s Next ? Jennings , M. (2017 ). Business; It’s Legal, Ethical, and Global Environment . (11 th ed.). South -Western Cengage Learning . The Holy Bible 34 References