27845v1a Learners Guide

US 27845 v1a
Learner’s Guide
LEGAL STUDIES
Unit Standard 27845

Version 1 | Level 2 | Credit 4
Explain litigation and

dispute resolution
processes
Licensed to:
Western Heights High School
2014 - 1a © ATC New Zealand
www.instant.org.nz
i
US27845v1a Learner's Guide Licensed to Western Heights High School

Explain litigation and dispute resolution processes 21112014-US27845-84829 INSTANT Education Solutions
1a © ATC New Zealand www.instant.org.nz
ii
About this
Learner’s Guide
Learning Purpose & Outcomes
In this guide you will you learn about the following dispute resolution and litigation processes:
• negotiation
• mediation
• arbitration
• civil litigation
• criminal litigation
As you complete this guide, it is important that you reflect on each type of dispute resolution
process and litigation process in relation to its advantages and disadvantages. If you have personal
experience with any of the processes mentioned in this guide, it will be useful to apply these to
your learning - if you feel comfortable doing so.
A glossary has been provided at the end of this guide to help you understand new legal terms
and other words that may be difficult. Words that have been included in the glossary have been
highlighted in the main text the first time that they appear.
Licensed to Western Heights High School US27845v1a Learner's Guide

21112014-US27845-84829 INSTANT Education Solutions Explain litigation and dispute resolution processes
iii
Additional
Resources
Legislation:
Learners should have access to the following legislation. Legislation can be accessed from:
www.legislation.govt.nz
Arbitration Act 1996

Crimes Act 1961
Employment Relations Act 2000
Family Proceedings Act 1980
Property Relationship Act 1979

1
Contents
Lesson 1: Overview 2
What is a dispute resolution process? 3
What is litigation? 5
Dispute resolution and litigation processes used in New Zealand 6
Lesson 2: Negotiation 8
Lesson 3: Mediation 14
Lesson 4: Arbitration 20
Lesson 5: Civil litigation 26
Lesson 6: Strengths and Weaknesses of Dispute Resolution Processes 31

Strengths and weaknesses of negotiation 35
Strengths and weaknesses of mediation 37
Strengths and weaknesses of arbitration 39
Strengths and weaknesses of civil litigation 40
Lesson 7: The Criminal Litigation Process 41
Glossary 52

2
LESSON 1:
Overview
Learning Objectives
In this lesson you will learn about dispute resolution and litigation. In
particular, you will learn about:
the meaning of dispute resolution processes
the meaning of litigation processes
some processes used in New Zealand to deal with disputes
and crimes
In this lesson you will learn about the difference between dispute
resolution and litigation. You will also learn about some of the dispute
resolution processes that are typically used in New Zealand.

3
LESSON 1: Overview
What is a dispute
resolution process?
We all have disputes in our day-to-day lives. We may have a dispute

with our mother about chores we are required to do at home, or we
might have a dispute with our teacher about an assignment that is
due. These disputes do not normally cause major problems for us
because they can usually be dealt with by discussing the issue with
the person concerned.
However, there are times when we have serious disputes that we are
unable to easily solve.
For example, a husband and wife who have decided to end their
marriage may have a dispute over how their property should be
divided. Alternatively, business partners may have a disagreement
about how to share the profit they have made. At times like these,
people need to take part in formal dispute resolution processes to
find a solution to the problem.
Can you think of any disputes that people may have that
What do would require a professional to help them? List some in the
You Think? diagram below:
Situations
that require
professional
help

4
LESSON 1: Overview
Have you, or anyone you know, ever been involved in a dispute resolution process? If so,
explain what the process was. [Note: you do not have to share this information if you do not
feel comfortable doing so.]
There are many different formal dispute resolution processes that

can be used. Each of these processes take a different approach to
dealing with a dispute. For example:
In some disputes resolution processes, the parties discuss the issues

together and come to an agreement about the best way forward.
In other dispute resolution processes the parties work with a

professional. The professional helps the parties solve their dispute.
In some dispute resolutions processes, a judge or other type of decision

maker will listen to the opinions of each side and then come to a decision.
The outcome of each dispute resolution process can also be different.

For example parties might:
• make an agreement that is binding (the court can force the
parties to do what the agreement says)
• make an agreement that is not binding (the courts cannot force
the parties to do what the agreement says)
• have a decision made for them, by another person, that is binding
• have a decision made for them, by another person, that is not binding
You will learn about four different types of dispute resolution processes
in the following lessons.

5
LESSON 1: Overview
What is litigation?
Litigation means ‘a legal proceeding in a court of law’. There are two

main types of litigation: civil litigation and criminal litigation.
Civil Litigation Civil litigation deals with disputes between two parties. These disputes
may relate to family issues, contracts disagreements, financial issues,
and so on.
Civil litigation is both a dispute resolution process and a type of

litigation. It is a dispute resolution process because it deals with
disputes between two civil parties. It is a type of litigation because it
takes place in a court of law.
You will learn more about civil litigation in lesson 5.
Criminal Litigation Criminal litigation does not deal with disputes between two people.
Instead it deals with one party and the government. A person has
to appear before a criminal litigation court if they are charged with
committing a crime.
Criminal litigation is not a dispute resolution process because it deals

with crimes, not disputes. You will learn more about criminal litigation
in lesson 7.
What do Can you think of any situations where people may need to be
You Think? involved in criminal litigation? List some in the diagram below:
Situations
where people
may be involved
in criminal
litigation.

6
LESSON 1: Overview
Dispute resolution and litigation

processes used in New Zealand
There are a number of different dispute resolution and litigation

processes used in New Zealand.
Civil dispute resolution processes used
Independent Civil
Negotiation Conciliation Mediation Expert Arbitration
Appraisal Litigation
Negotiation Conciliation Mediation An Arbitration Civil litigation

takes place takes place takes place independent occurs when occurs when
when two when an when the two expert two parties two parties
parties discuss impartial disputing appraisal present their present their
their disputes person parties takes place case to a case to a
with each (conciliator) meet with when an decision judge and a
other. meets with an impartial expert in a maker, and decision is
You will learn each party person particular field a decision is made based
more about individually (mediator) who researches made based on the facts
negotiation in and attempts helps guide the facts of on the facts of the case.
lesson 2. to resolve their the parties to a case and of the case. You will learn
differences. a resolution. then makes You will learn more about
You will learn an expert more about arbitration in
more about decision arbitration in lesson 5.
mediation in based on lesson 4.
lesson 3. the evidence
provided.
Litigation processes used
Civil Criminal
Litigation Litigation

7
LESSON 1: Overview
Scenarios
Read the following scenarios. We will use each of these scenarios as we
learn more about the four different types of dispute resolution processes.
Scenario 1:
Leanne and Roger have decided to end their marriage of ten
years. Leanne and Roger have not had any children together.
They have both focused on their careers – Leanne as a doctor
and Roger as an accountant.
They have over $150,000 in savings and own a family home

and two holiday homes. They also have about $300,000
worth of other possessions including two cars, a boat, and
expensive art.
Although they both agree that the property should be split

50/50 according to the terms of the Property (Relationships)
Act 1979, they disagree how it should be split.
Issues that Roger and Leanne have:

• Both Leanne and Roger want the family home.
• Both want to keep their expensive art collection.
• Leanne believes that the two holiday homes should be
sold so that they can have cash assets. Roger believes
that they should be kept as investments.
Scenario 2:
The Greenhouse is a new plant and garden supplies store that
has just opened three branches throughout Auckland.
About five months ago, The Greenhouse asked Market U, a
multinational marketing firm based in Auckland, to create a
marketing campaign for the launch of their new stores.
Upon signing the contract, The Greenhouse paid Market U a

deposit of $40,000 for the project. A further $80,000 was to be
paid to Market U at the completion of the project.
The Greenhouse is refusing to pay Market U any more funds because they are unhappy with
the outcome of the marketing campaign. They argue that Market U cut corners on the project
and they did not produce the results that were promised. For example, billboards were only
placed in obscure areas, the website was created using a free ‘website wizard,’ and the
newspaper advertisements had incorrect details in them.
Although Market U agree that some corners were cut, they believe that they should still be
paid in full for the work that they did. They have documentation to prove the hours that they
spent on the project.

8
LESSON 2:
Negotiation
Learning Objectives
In this lesson, you will learn about:
what negotiation is
participants in negotiation
when negotiation is used
the negotiation process
possible outcomes in a negotiation
underlying principles of negotiation
different types of negotiation
cost of negotiation
Negotiation is a form of dispute resolution where two or more parties

discuss a matter to reach an agreement or compromise. Parties can
choose whether the negotiation is legally binding or not.
Participants:
The following people are usually involved in a negotiation. If the
negotiation is relatively simple, lawyers may not be involved.
Party A Party B
Party A’s Lawyer Party B’s Lawyer

9
LESSON 2: Negotiation
Negotiation is often used for:
Contract disputes Property related Relationship property Disputes between

between businesses disputes disputes governments or other
organisations
Process:
Negotiation often starts informally between the two parties having the
dispute. The parties may decide to meet their lawyer’s individually to
get advice about what to do. If the negotiations with each other are
not successful, then a formal negotiation process that involves the
lawyers will start.
The parties and their lawyers will decide how

the negotiation will be run, which issues will be
Set agenda
discussed, and whether or not the negotiation
agreement will be binding.
The parties will discuss what they think the

Identify facts facts are. Important documents and other
types of evidence will also be presented.
Each party will state what they hope to achieve

Set objectives
from the negotiation.
The parties will discuss solutions to the issues

Discuss that they face. Experienced negotiators will try
solutions to think ‘outside the box’ so that both parties
can come to an agreement.
The negotiation will come to an end when

the parties find suitable solutions that meet
Close
each of their objectives. In some cases,
negotiation
the negotiation will end if it is clear that the
objectives cannot be met.

10
Possible outcomes in a negotiation:

There are four possible outcomes to a negotiation.
The parties come to an agreement that they

are both are happy with. This is called a win-
win outcome. It is the best type of outcome.
The parties come to an agreement that only

one party is happy with. This outcome is called
a win-lose outcome. This can occur when one
party is bullied into making the agreement.
Another possible outcome is when both parties

decide to meet again for another negotiation
meeting. They normally do this if they have run
out of time or need to do more research.
Sometimes the negotiation breaks down and

parties cannot continue with it. In such cases
the parties have to try other forms of dispute
resolution such as litigation.
Roger and Leanne’s case:
Would negotiation be a useful dispute resolution process

for Roger and Leanne? Roger and Leanne have already been
involved in informal negotiations in relation to how to divide
their relationship property. Formal negotiation would probably
be a useful dispute resolution process for Roger and Leanne.
Who would the participants in Roger and Leanne’s negotiation

be? Roger, Roger’s lawyer, Leanne, Leanne’s lawyer.
What process would Roger and Leanne follow?

1. Firstly they would decide on the basics of the negotiation. They would also decide whether
the negotiation agreement will be binding or not.
2. Next they will identify the facts. For example, they will identify what their assets are as well
as their desire to split the property 50/50.
3. The parties will then state what their objectives are. For example, they will both say that
they want to keep the family home. Leanne will say that she wants to sell the holiday
homes etc.
The parties will then discuss each objective. They will make compromises and think of
alternative solutions in relation to how the property should be divided.
4. By the end of the negotiation the parties should have come to an agreement about how
all of the property is to be divided. If not, they may decide to have another negotiation, or
they may decide to take the case to litigation or another form of dispute resolution.

11
Refer to the dispute between The Greenhouse and Market U.

Try it For Answer the questions the follow.
Yourself 1. Would negotiation be a useful process for The Greenhouse
and Market U? Why?
2. Who would the participants in the negotiation be?
3. What process would the companies follow?

12
Underlying principles of negotiation: Types of negotiation:

There are a number of The type of negotiation used depends
key principles that make on the negotiation style of the parties
negotiation an important involved.
dispute resolution process.
Distributive negotiation
Distributive negotiation uses hard-bargaining or
• It is non-adversarial. The parties ‘haggling’ to get an outcome. With this type of
can discuss the issues rather than negotiation, each side adopts an extreme position
‘argue’ over them. and then tries to get as much of this position as
• It allows the parties involved to have they can. This method is often called a ‘win-lose’
a greater say in what the issues are method. People who use this negotiation method
and what the outcome should be. need to be very assertive and convincing.
• There are no ‘surprise’ decisions. Integrative negotiation
The parties must agree on a This method is thought to be a better alternative to
decision before it is binding. distributive negotiation. With integrative negotiation
each of the parties interests are looked at, and
creative ways to meet these interests are discussed.
“Negotiation is an informal, flexible way The parties cooperate to find the best solution. This
of finding a solution between the parties method is often called a win-win method.
involved in a claim.
We strongly recommend that any Costs: In general, negotiation is much
agreement negotiated is put into cheaper than litigation or arbitration.
writing to protect all parties.” However, if the negotiation is long
Department of Building and Housing, New Zealand. and covers multiple issues, then the
fees may be quite high.
Check your 1. In your own words, explain the different types of

understanding negotiation.
2. Which type of negotiation do you think would be best for Leanne and Roger’s situation? Why?
Continued on the next page...

13
3. What does the Department of Building and Housing say about negotiation? Do you
agree? Why? Why not?

14
LESSON 3:
Mediation
Learning Objectives
In this lesson you will learn about:
• what mediation is
• participants in mediation
• when mediation is used
• the mediation process
• possible outcomes in a mediation
• underlying principles of mediation
• different types of mediation
• cost of mediation
Mediation is a form of dispute resolution where two or more parties

discuss their issues with a mediator. The mediator is impartial. He/she
listens to the parties and helps them come to an agreement.
The mediator does not make a decision for the parties.
Participants:
The following people are usually involved in a mediation.
Sometimes the party’s lawyers may attend a mediation and
offer support. They are not encouraged to participate.
Party A Mediator Party B

15
LESSON 3: Mediation
Mediation is often used for:
Employment related Family related Tenancy related

disputes disputes disputes
Process:
There are four key elements in the mediation process. These include:
Mediation must be agreed upon by both parties.

A party cannot be forced to attend the mediation
Pre-mediation
conference. Both parties sign an agreement
appointing a mediator of their choice. They are
able to opt out of the mediation at any time.
The mediator will arrange a time and a venue

Preliminary for the mediation with the parties. The mediator
conference will state whether any documents are needed,
and also outline the process to the parties.
1. The mediator will usually start with an

opening statement highlighting the reason for
the mediation, and the role of the mediator. After
that, each party will be given an opportunity to
explain their situation.
2. The mediator will then encourage each
At the meeting party to set an agenda for the mediation, as
well as highlight key issues. The issues and
options will then be explored and discussed
in a relaxed manner. A key aim of the mediator
is to help each side to understand the other
side’s situation.
Once the issues have been explored, an

agreement can be made and signed by the
parties. Once the agreement has been signed,
Discuss it is legally binding. Sometimes, parties choose
solutions
not to sign an agreement. Instead, they may
choose to discuss the matter more, have
another mediation conference, or proceed to
litigation.

16
LESSON 3: Mediation
Possible outcomes in a mediation:

There are three possible outcomes to a mediation.
The mediator helps the parties come to an

agreement that they are both are happy with.
A formal agreement is drafted and signed by
each party. The issue is solved.
The parties are unable to come to an agreement

at this stage but are open to continuing with
the mediation process. They may decide to
schedule another mediation conference.
The parties cannot reach an agreement

through mediation. They decide to address
their dispute through another form of dispute
resolution such as litigation or arbitration.
Would mediation be a useful dispute resolution process

for Roger and Leanne? Mediation would be a good option
for Roger and Leanne. It would be useful for them to have an
impartial person present who could suggest different options
and help them look at the situation from a different point of
view. They may be able to use the mediation service that is
provided by the Family Court.
Who would the participants in Roger and Leanne’s mediation

be? Roger, Leanne, and the mediator would be present. Their
lawyers could be present, but this is probably not necessary.

1. Firstly Roger and Leanne would take care of pre-mediation formalities, such as selecting
a mediator.
2. Roger and Leanne would then both meet with the mediator to decide on a time and a
place for the mediation. The mediator would inform Roger and Leanne of any documents
that they need to bring, and so on.
3. At the mediation meeting, the mediator would explain their role and the reason for the
negotiation. They would then explore and discuss the issues. The mediator would encourage
Roger and Leanne to think of different possibilities. For example, he may ask them if they are
comfortable putting the holiday homes into a private company so that they could be used as
an investment.
4. If Roger and Leanne can find appropriate solutions to all their issues, then can then sign a
binding mediation agreement. If they cannot come to an agreement, they may need to have
another mediation meeting, or they may need to think of another form of dispute resolution.

17
LESSON 3: Mediation

Try it For Answer the questions that follow.
Yourself 1. Would mediation be a useful process for The Greenhouse
and Market U? Why?
2. Who would the participants in the negotiation be?

18
LESSON 3: Mediation
Underlying principles of mediation: Types of mediation:

There are a number of There are a number of different types
key principles that make of mediation.
mediation an important
Evaluative mediation
dispute resolution process. In some mediations, the mediator will give their
opinion about what a fair settlement may be.
• It is non-adversarial. The parties The mediator only does this with the approval of
can discuss the issues rather than both of the parties involved. In many ways, an
‘argue’ over them. evaluative mediator is more like an advisor. They
• The parties have the guidance of a see the strengths and weaknesses in each party’s
argument and give their opinion on it.
third person who can help them
think of different approaches. Facilitative mediation
• The parties can form a decision In facilitative mediations the mediator does not give
themselves without influence from an evaluation or guide the parties to a resolution.
other parties, or lawyers. Instead, the mediator manages the process of the
mediation (not the outcome). Structure and sticking
to the agenda is important for a facilitative mediator.
“Mediation avoids the adversarial
unpleasantness of litigation, including
cross examination, and the fear and Costs: In general, mediation is one of the
cheapest forms of dispute resolution.
anxiety associated with courthouses and
Some mediators charge under $200
courtrooms.”
per hour. This is much cheaper than
Nigel Dunlop, Mediator other forms of dispute resolution such
as litigation or negotiation (with lawyers). In some
cases mediation is free if arranged through a
government agency. Normally parties will split the
mediation fee between them.
Government agencies and mediation:
Many government agencies use mediation as a tool to solve disputes. For example:
• Under the Family Proceedings Act 1980, mediation conferences can be held
in relation to marriage dissolution or day-to-day care of children issues.
• The Department of Labour offers mediation services for employers and employees who
are in a dispute. This service is provided under the Employment Relations Act 2000.
• The Department of Building and Housing offers mediation for landlords and tenants who
have tenancy issues.

19
LESSON 3: Mediation

understanding mediation.
2. Which type of mediation do you think would be best for Leanne and Roger’s situation? Why?
3. What does Nigel Dunlop say about mediation? Do you agree? Why? Why not?

20
LESSON 4:
Arbitration
Learning Objectives
In this lesson you will learn about
• what arbitration is
• participants in arbitration
• when arbitration is used
• the arbitration process
• possible outcomes in arbitration
• underlying principles of arbitration
• different types of arbitration
• cost of arbitration
Arbitration is like a court outside the courts. A person called an arbitrator

listens to and reviews the case and then makes a decision. The arbitrator
is usually an expert in the area that they are hearing. The setting is similar
to litigation, although it is less formal. Arbitration cases are usually private.
Arbitration in New Zealand is governed by the Arbitration Act 1996. You
will learn more about this later on in the lesson.
Participants:
The following people are usually involved in an arbitration.
Sometimes more than one arbitrator hears the case.
Arbitrator
Party A Lawyer Lawyer Party B

21
LESSON 4: Arbitration
Arbitration is often used for:
Commercial Building Contract related Disputes between

disputes disputes disputes governments
Process:
There are four key elements in the arbitration process. These include:
Before two parties can enter an arbitration,

they must have an agreement to arbitrate.
Agreement
Many agreements between businesses include
to arbitrate
a clause that specifies arbitration as the form
of dispute resolution that will be followed in the
event of a dispute.
The agreement between the parties should

specify how the arbitrator is to be selected.
Selecting an Sometimes the parties will decide not to meet
arbitrator the arbitrator for a hearing. They will just
supply the documents and let the arbitrator
make the decision.
The arbitration will be held at a neutral, semi-

formal place that is appropriate for both parties.
Arbitration The parties will have an opportunity to give
meeting evidence and call witnesses. The arbitrator may
ask questions in order to get the information
required to make a decision.
The arbitrator will make a decision. An

additional meeting will be held for the arbitrator
to give his/her decision to the parties.
Arbitration
decision
Usually an arbitrator’s decision is binding. If
the parties decide on a non-binding arbitration,
they are able to appeal their case to the court.

22
Possible outcomes in an arbitration:

At the end of the arbitration, the arbitrator will make an arbitration
decision. This decision is known as an ‘award.’ The arbitrator may:
• order one party to pay a sum of money to the other party
• order one party to do something (performance)
• set aside or cancel a document
Would arbitration be a useful dispute resolution process

for Roger and Leanne? Arbitration would not normally be
used in martial property cases. This is because there is already
a set structure for dealing with such cases (eg counselling,
mediation, going before a Family Court judge).
Who would the participants in Roger and Leanne’s arbitration

be? If Roger and Leanne did decide to go to arbitration then
the participants would include, Roger, Leanne, their respective
legal representation, and the arbitrator.

1. Firstly Roger and Leanne would need to make an agreement to go to arbitration. They would
also need to decide on an arbitrator.
2. A preliminary conference would be held where Roger and Leanne would decide on the dates
and venue for the arbitration. They would also submit any relevant documents to the arbitrator.
3. At the arbitration conference, Representatives for Roger and Leanne would have the
opportunity to present evidence and answer any questions that the arbitrator has.
4. After the arbitration hearing, the arbitrator will make his/her decision. They will call a meeting
where they state their decision and give reasons for why they came to such a decision.

Yourself 1. Would arbitration be a useful process for The Greenhouse
and Market U? Why?
Yes, arbitration would be a good dispute resolution process for their two
parties. An expert in the area of business disputes would be able to hear
both sides of the story and make a decision on it for them.

23
2. Who would the participants in the arbitration be?

24
Underlying principles of arbitration: Types of arbitration:

The overall principle There are a number of different types
of arbitration is for of arbitration.
the parties to obtain a
Bracketed arbitration
fair resolution from an This is a type of arbitration where the parties
impartial third party. agree before the arbitration on compensatory
This resolution should be gained without limits. This means that a party does not have to
unnecessary expense and delay. pay more than the limit that is set.
Arbitration is also private. Decisions Binding arbitration

made in arbitrations are not normally This is a form of arbitration where the arbitrator’s
published. This means that decisions decision is legally binding and enforceable (similar
are confidential and will not be made to a court).
known to the public. Non-binding arbitration
With this form of arbitration, the parties do not
Two thirds of Alternative Dispute have to comply with the award that the arbitrator
Resolution Practitioners believe that decides. They are able to appeal the decision to
the courts.
80% of all disputes can be solved
through alternative dispute resolution
methods like arbitration. Costs: In general, arbitration is cheaper
Ministry of Justice than litigation. However, it is more
expensive than mediation or
negotiation. For example, arbitration
Arbitration Act 1996 in Wellington can cost around $4,000
Arbitration in New per day1. Also, if lawyers are involved in the
negotiation, their fees will be high too.
Zealand is governed
by the Arbitration
Act 1996. This act highlights a number of requirements that parties must follow when arbitrations
are conducted in New Zealand. Schedule 1 of the Act includes rules that apply to general arbitration
such as rules related to arbitration, ways an arbitration can be challenged, failure to act, and so on.
You can read more about this act at:
http://www.legislation.govt.nz/act/public/1996/0099/latest/DLM403277.html
1
http://www.pdgreen.com/SERVICES/Arbitration.html

25

understanding arbitration.
2. Which type of arbitration do you think would be best for The Greenhouse’s and
Market U’s situation? Why?

26
LESSON 5:
Civil
litigation
Learning Objectives
• what civil litigation is
• participants in civil litigation
when civil litigation is used
• the civil litigation process
• possible outcomes in civil litigation
• underlying principles of civil litigation
With civil litigation, parties have their dispute heard inside the formal
setting of a court. A judge listens to the arguments of both sides
and then makes a decision based on the arguments provided. The
decision of all cases heard before the courts are made public.

27
LESSON 5: Civil ligitation
Participants:
There are a number of participants in the civil litigation process.
Look at the following diagram:
B A C
Court Layout
H G F E
A - Judge: the judge hears the case and makes a decision on it.
B - Court Reporter: the court reporter records the judge’s
decision, and the evidence of witnesses.
C – Witness: a witness is questioned by both sides to help them
argue their case. People who are experts in the relation to the
issue being discussed may be questioned.
D – Court Registrar: the court registrar opens the court, swears
in witnesses, passes documents to the judge and oversees the
running of the court.
E – Counsel for Plaintiff: counsel for the plaintiff are lawyers
who represent the arguments of the person who brought the case
to the courts.
F – Plaintiff: the plaintiff is the person (or organisation) who
brought the case to court.
G – Counsel for the Defendant: counsel for the defendant are
lawyers who represent the arguments of the person who has been
called to the courts by the plaintiff.
H – Defendant: the person who is called to the courts, who has
been accused of misconduct.
I – Jury: 12 people randomly chosen from the public to decide on
the case. Juries rarely participate in civil cases.

28
Civil litigation is often used for disputes above $15,000 such as:
Commercial Building Contract related Relationship

disputes disputes disputes property disputes
Process:
The civil litigation process has the following elements.
One party to the dispute will file a claim with

the District Court. The claim will outline what
Filing forms the problem is and what they want done to
solve the problem. This party is known as the
plaintiff.
The other party (the defendant) will then

receive notice of the claim. If they agree with
the claim they will settle with the plaintiff (by
Responding to giving them what they have asked for in the
the claim claim). If they do not agree, they will respond
by outlining their version of events and their
response to the plaintiff’s claim. They may
also issue a counterclaim.
If the plaintiff or the defendant believe that the

other party’s claim cannot succeed, they can
Summary apply to the courts for a summary judgement.
Judgement A summary judgement is a judgement that is
made by the judge before the case is heard in
court.
If a summary judgement is declined (or not

applied for) then the case may go to trial. At
the trial the judge will hear the arguments
Trial
of both counsel (for the plaintiff and the
defendant) and then make a decision based
on the evidence presented.

29
Possible outcomes in civil litigation:

If the case goes to trial, there will be two possible outcomes:
• the defendant will be found liable
• the defendant will be found not liable
If the defendant has filed a counter-claim, then they may also be
found liable or not liable
NOTE: The defendant or plaintiff can elect to appeal their case if they
have a legal reason to do so.
Would civil ligitation be a useful dispute resolution process

for Roger and Leanne? Civil litigation would only be useful
as a last resort. For example, it could be useful if one party
refused to participate in negotiation or mediation processes.
Who would the participants in civil litigation be?

If Roger or Leanne did decide to go to civil litigation, the
participants would be Roger and his legal counsel, Leanne
and her legal counsel, any relevant witnesses, and those who
work in the courts (such as the judge, registrar, court reporter,
and so on).
What process would Roger follow if he decided to process the case through civil litigation?
1. Firstly Roger will file a claim with the court.
2. Leanne will respond to the claim highlighting the reasons why she does not agree with it.
She will also file a counterclaim.
3. Roger or Leanne may file for a summary judgement.
4. If a summary judgement is not granted, or they do not settle, they will have a trial. The
judge will decide how they can divide their property.

Yourself 1. Would civil litigation be a useful process for The Greenhouse
and Market U? Why?
Yes, it would be a useful process, especially if one party was unwilling to
cooperate with the process.

30
2. Who would the participants in the civil litigation be?
3. What process would Market U follow if it took The Greenhouse to court?
Underlying Principles of Civil Litigation:

There are two key underlying principles of civil litigation: burden of proof and standard or proof.
Burden of proof:
The burden of proof refers to who has the responsibility of proving that the defendant was at
fault. In civil litigation in New Zealand the burden of proof is always on the plaintiff. This means
that it is the plaintiff’s responsibility to prove that the defendant is wrong. The defendant does
not generally have to prove that they did not do the wrong.
Standard of proof:
Standard of proof means the level of proof that is required to prove that the defendant was
at fault. The standard of proof in civil litigation is always ‘on the balance of probabilities’. This
means that the judge must believe that the defendant is most likely to be at fault.

31
LESSON 6:
Strengths and Weaknesses of

Dispute Resolution Processes
Learning Objectives
In this lesson you will learn about the strengths and weaknesses of
negotiation, mediation, arbitration, and civil litigation. You will look at
these strengths and weaknesses in relation to:
• cost
• efficiency
• autonomy
• balance of power
• cooperation
Each of the four dispute resolution processes that we have looked

at are different. They all have some strengths and weaknesses. It
is important to know about these strengths and weaknesses when
choosing a dispute resolution process.
In this section we will look at some of the strengths and weaknesses of

negotiation, mediation, and litigation in relation to the following areas.
• Cost: can most people afford to be involved in the dispute

resolution process?
• Efficiency: can people have access to the process with no or
only minor delays?
• Autonomy: are the people involved in the process able to ‘have
their say’ and decide what the possible outcomes will be?
• Balance of power: is the dispute resolution process able to
deal with any power imbalances?
• Cooperation: can the dispute resolution process make non-
cooperating parties engage in the process?

32
LESSON 6: Strengths and Weaknesses of Dispute Resolution Processes
Cost
It is important for the cost of dispute resolution process to be affordable for all parties.
Negotiation
Low High
Mediation
Low High
Arbitration
Low High
Civil
litigation
Low High
Mediation is generally the cheapest form of dispute resolution, there are many government agencies
that offer free mediation services. Depending on the complexities of the case, negotiation can be
expensive, especially if lawyers are involved. Out of the four processes, civil litigation is the most
expensive form of dispute resolution. Not only do the parties need to pay for court fees, but they
also need to pay lawyer’s fees which can be very expensive. Arbitration is also expensive due to
the high cost of paying an arbitrator. Arbitration fees can cost up to $4000 per day.
Efficiency
It is important that the dispute can be dealt with without long delays.
Negotiation
Low High
Mediation
Low High
Arbitration
Low High
Civil
litigation
Low High
Negotiation, mediation, and arbitration do not have the delays that litigation processes typically
have. However, parties using mediation and arbitration may experience some delays if the mediator
or arbitrator is not available. There are significant delays with court hearings. For example, in
Hamilton the average delay at the District Court is 329 days.

33
Autonomy
It is important that parties are able to share their opinion and ideas as well as have
some say in relation to the outcome of the dispute.
Negotiation
Low High
Mediation
Low High
Arbitration
Low High
Civil
litigation
Low High
Negotiation and mediation allow the parties to be in control of the decision making process. This
means that the parties are able to create solutions to the dispute that are meaningful and useful for
them. With arbitration and litigation, the arbitrator/judge makes the decision. Although the parties
can say what they want a solution to be, the ultimate decision is up to the arbitrator/judge.
Power Balance
It is important that the power between the parties is balanced. If it is not balanced then
one party might ‘bully’ the other party.
Negotiation
Low High
Mediation
Low High
Arbitration
Low High
Civil
litigation
Low High
In negotiation there is a high risk that there will be an imbalance between the parties. This means
that one party could force a decision on the other party. With mediation and arbitration there is
less chance of a power imbalance because a third party is present (a mediator or arbitrator). The
mediator or arbitrator is able to direct the process so that both parties have the opportunity to have
their say. With litigation, there is a set process where everyone gets to have their say. This reduces
the problem of potential power imbalances.

34
Cooperation
It is important that both parties cooperate with each other during the process. Major
delays can be caused if a party does not attend dispute resolution meetings or refuses
to discuss certain issues.
Negotiation
Low High
Mediation
Low High
Arbitration
Low High
Civil
litigation
Low High
In both negotiation and mediation, the parties have to sign the agreement at the end of the negotiation/
mediation. If one party is not interested in resolving the issue then there is nothing that negotiation
or mediation can do to enforce a decision. However, arbitration is usually binding, and civil litigation
always is. This means that even if one party does not cooperate, a decision will still be made.

35
Strengths and weaknesses

of negotiation
The previous section highlighted a number of strengths and

weaknesses for negotiation. Look at how these strengths and
weaknesses apply to Roger and Leanne’s situation.
How would the strengths and weaknesses affect Roger

and Leanne if they decided to use negotiation as a dispute
resolution process?
Negotiation provides a number of benefits for Leanne and Roger.
Firstly, Leanne and Roger will be in charge of the outcome of the
case. They will not have to sign off on a decision unless they are
both happy with the outcome.
When compared to other forms of dispute resolution (such as litigation and arbitration),
negotiation will be a lot cheaper and there will be fewer delays.
However, there may be some power imbalances in the negotiation. For example, if Leanne
hires a lawyer who has an aggressive win-lose approach then this could mean that Roger will
be unhappy with the outcome of the negotiation and refuse to sign the agreement.
Also, if one of the parties does not want to participate in the negotiation, it will be impossible
for them to come to an agreement.
Refer to the dispute between The Greenhouse and Market U and

Try it For answer the questions that follow:
Yourself 1. What are the benefits of these parties using negotiation to
help solve their issue?

36
2. If these parties decided to use negotiation, would there be any negative points?

37

of mediation
You have already looked at a number of strengths and weaknesses

for mediation as a dispute resolution process. Look at how these
strengths and weaknesses apply to Leanne and Roger’s situation:
How would the strengths and weaknesses affect Roger and Leanne if they decided to
use mediation as a dispute resolution process?
As with negotiation, mediation also provides a number of benefits for Leanne and Roger.
Firstly, mediation gives Roger and Leanne a good opportunity to discuss their issues with an
impartial third person. Having another person there may mean that the mediation will remain
friendly and constructive. It will also address any possible power imbalances. The cost and
time frame of mediation will also be good for Roger and Leanne’s situation.
However, as mediation agreements are not binding, it may mean that their efforts will be
wasted if either Leanne or Roger are not willing to comply with the agreement.

Yourself
1. What are the benefits of these parties using mediation to


38
2. If these parties decided to use mediation, would there be any negative points?

39

of arbitration

weaknesses for arbitration. Look at how these strengths and
use arbitration as a dispute resolution process?
Arbitration would enable Roger and Leanne to have a decision made, about the outcome of
their case, by an impartial expert.
However, the cost of arbitration would not be suitable. Arbitration can cost up to $4,000
per day. If the arbitration lasted more than a week it may cost Roger and Leanne more than
$20,000 (excluding lawyer’s fees).
It would be better for Roger and Leanne to use a dispute resolution technique that is more
suited to their specific dispute (such as mediation which is provided by the family court for
free in some situations).

Yourself 1. What are the benefits of these parties using arbitration to
2. If these parties decided to use arbitration, would there be any negative points?

40

of civil litigation

weaknesses for civil litigation. Look at how these strengths and
use civil litigation as a dispute resolution process?
Civil litigation would mean that Roger and Leanne would have a final and clear decision about
how their property should be divided. However, there are a number of problems with the civil
litigation process that could affect them.
• Civil litigation is very expensive. Roger and Leanne may not be willing to spend their
money on lawyer’s fees and court costs.
• There will be long delays. Roger and Leanne may have to wait for up to a year to have
a decision made on their issue.

Yourself 1. What are the benefits of these parties using civil litigation
to help solve their issue?
2. If these parties decided to use civil litigation, would there be any negative points?

41
LESSON 7:
The Criminal
Litigation Process
Learning Objectives
• what criminal litigation is
• participants in criminal litigation
• types of criminal litigation
• criminal litigation process
• underlying principles of criminal litigation
• strengths of criminal litigation
• weaknesses of criminal litigation
In this lesson you will look at criminal litigation. Criminal litigation is

not a dispute resolution process between two independent parties. It
is a process where the Crown takes someone to court who has been
charged with committing a crime.
Criminal litigation aims to:

• find out if the person charged with a crime actually committed
the crime
• decide on suitable penalties or punishment for people who are
convicted of committing crimes

42
LESSON 7: The Criminal Litigation Process
What do Can you think of any issues that criminal litigation deals with?
You Think?
Situations that
require criminal
litigation
Have you, or anyone you know ever been involved in a criminal litigation process? You, or
your parents, may have been on jury service or witness to a crime. If so, explain what the
process was.
[Note: you do not have to share this information if you do not feel comfortable doing do.]

43
Participants:
There are many participants in a criminal litigation in New
Zealand. Look at the following diagram:
B A C
Court Layout
G E E E
A - Judge: a judge will hear the case and decide whether the
accused is guilty or not (if there is no jury). They judge will also
make a sentencing decision.
B - Court Reporter: the court reporter records the judge’s
decision and the evidence of witnesses/victims.
C - Witness: a witness is a person who saw or was in some way
associated with the crime. They are questioned by the counsel
during the court case.
D - Court Registrar: the court registrar opens the court, swears
in witnesses, passes documents to the judge and oversees the
running of the court.
E - Counsel: there are two counsel (lawyers) – counsel for the
Crown (prosecution) and counsel for the defendant. Counsel for the
Crown argues that the defendant committed the crime. Counsel for
the defence argues that the defendant did not commit the crime.
F - Jury: the jury, a group of 12 members of the public who
are randomly selected, listen to the evidence presented by the
counsel and then come to a decision about it.
G - Defendant: the defendant is the person who is charged with
the crime.

44
Types of criminal litigation

The process of criminal litigation is different depending on the type
of crime that the defendant has been charged with. There are four
different types of crimes (offences):
Category 1 Category 2 Category 3 Category 4

offence offence offence offence
Maximum penalty
Any offence that is

Maximum A prison term A prison term of
listed in Schedule
penalty is a fine of LESS than MORE than two
1 in the Criminal
only two years or a years (except
Procedure Act.
community-work for Schedule 1
These are the most
sentence offences)
serious types of
offences.
Type of trial
Default is Judge
only trial in District
Judge only trial Usually judge Court BUT In most cases,
in District Court only trial in defendant may elect there will be a
District Court. In to have a jury trial. jury trial in the
some cases, the In some cases, the High Court
trial may be in trial may be in the
the High Court. High Court.
Driving while Theft if value is Aggravated Murder

intoxicated under $1000 assault
Examples of offences
Dangerous Assault on a Theft if value is Judicial

driving child over $1000 corruption

45
Criminal litigation process

The process of criminal litigation is different depending on the
category of offence that the defendant has been charged with. Look
at the following diagram for the process that would be followed for a
Category 3 offence.
Category 3 cases
Plead
Sentencing
guilty
1st 2nd
appearance appearance
If no election
Plead Judge-alone
not guilty Case review Sentencing
trial
Jury trial Sentencing
If election

46
The litigation process can be split into the following sections:
At this stage, the following steps are taken.

• The charging document is filed at the court.
• The defendant makes their first appearances (the first to hear the charges
set before them, the second to enter a plea).
Admin
• If the offence is a category 3 offence, the defendant will elect to have
a judge or jury trial.
If a not guilty plea has been entered, the case will enter the case review
stage. This only applies to category 2, 3 and 4 offences. At the case review
Review stage the possible sentence that the defendant could receive will be shared
and the details of the trial will be decided on. The defendant may change
their plea at this stage.
After the review stage the case will go to trial, unless the defendant has
decided to plead guilty.
The defendant will be required to answer questions from counsel for the
defence and counsel for the Crown (the prosecution).
Witnesses will also participate in the criminal litigation process during the
Trial trial. They will answer questions from both the prosecution and the defence
counsel.
If the defendant has elected to have a jury trial, then a jury will also be present.
At end of the trial the judge (or jury, if it is a jury trial) will reach a verdict: the
defendant will either be found guilty or not guilty. If the defendant is found
not guilty, they will be free to leave the court (unless they are charged with
other offences).
Sentencing occurs in situations where the defendant has pleaded guilty or

has been found guilty.
Sentencing normally takes place after a pre-sentence report has been
prepared. The pre-sentence report is prepared by a probation officer and
provides detail of the offender’s background and a recommendation about
what penalty they should be given. A victim impact statement will also be
Sentencing prepared that highlights the effect that the crime has had on the victim. The
judge will take this into account when giving a sentence.
A sentence hearing will then take place. At the sentence hearing, the counsel
appearing for the prosecution and counsel appearing for the offender
(defence) will give oral submissions in order to persuade the judge about
what the sentence should be. The judge will then give a sentence and explain
why that sentence has been imposed.

47
Possible outcomes of criminal litigation:

The judge or jury will come to one of two verdicts.
• GUILTY – it is believed beyond reasonable doubt that the
defendant committed the crime.
• NOT GUILTY – it is believed that the defendant did not commit
the crime.
In rare cases, criminal litigation with a jury may result in a ‘hung jury’.
This means that the jury was unable to make a decision. In such
cases, the case must be tried again by a different set of jurors.
NOTE: Either side may appeal the case if they have legal reasoning
for doing so.
Underlying Principles of Criminal Litigation:

There are two key underlying principles of criminal litigation: burden of proof and standard
or proof.
Burden of proof:
The burden of proof refers to who has the responsibility of proving that the defendant committed
(or didn’t commit) the crime. In criminal litigation in New Zealand, the burden of proof is always on
the prosecution. This means that it is the prosecution’s responsibility to prove that the defendant
committed the crime that he or she is charged with. The defendant does not generally have to
prove that they did not commit the crime.
Standard of proof:
Standard of proof means the level of proof that is required to prove that the defendant committed
the crime that he or she is charged with. The standard of proof in criminal litigation is always
‘beyond reasonable doubt’. This means that the judge or jury must believe beyond reasonable
doubt that the defendant committed the crime that he or she has been charged with.
Andrew’s case:
Andrew is an accountant at a reputable accountancy firm in
Hamilton. Andrew is friends with a butcher called Alex. They met
at their local rugby club about five years ago and have regularly
kept in contact due to their shared love of sport.
Andrew knows that Alex has some friends who are involved in
crime. Alex always has the latest gadgets at his house and always
brags about how cheaply he purchased each item for.
A few weeks ago Alex offered Andrew a new iMac computer for
only $800. Similar computers normally retail for over $2500 in
the shops. Andrew was excited to buy the item because he has
actually been saving up for one.

48
Andrew paid the $800 to Alex and received the iMac computer. A few weeks later, the Police
knocked on Andrew’s door. They searched his house and determined that the iMac was a
stolen item.
Andrew has been charged with receiving stolen goods under 246 of the Crimes Act 1961.
Section 246 says:
(1) Everyone is guilty of receiving who receives any property stolen or obtained by any
other imprisonable offence, knowing that property to have been stolen or so obtained, or
being reckless as to whether or not the property had been stolen or so obtained.
The punishment for receiving is as follows:
Every person who is guilty of receiving is liable as follows:
a. if the value of the property received exceeds $1,000, to imprisonment for a term not
exceeding 7 years
b. if the value of the property received exceeds $500 but does not exceed the sum of
$1,000, to imprisonment for a term not exceeding 1 year
c. if the value of the property received does not exceed $500, to imprisonment for a
term not exceeding 3 months
1. What category offence will Andrew be charged with? Why?
2. What court process will Andrew follow? Explain briefly.
3. Do you think Andrew will be found guilty? Why? Why not?

49
Strengths of criminal litigation
One strength of the criminal litigation process in New Zealand is that it is

impartial. In criminal litigation the specific details of the case are looked at in
detail in relation to the law. A judge (or jury) can then make a decision about
the case based on these details. Jury members are not allowed to base their
decision on what they have read about the defendant, or their own personal
opinions.
If it is discovered that a jury member has not been impartial, they will be
charged with contempt of court and there will be another trial. Furthermore,
if it is feared by the Court that the jury may not be impartial, the court may
move to another location where there is a greater chance that the jury will be
Impartial impartial.
In the case of Crown v MacDonald the jury was moved from MacDonald’s
hometown of Palmerston North to Wellington. The case was moved to
Wellington because the court was concerned that because MacDonald, and
the victim were so well-known in Palmerston North, it might be difficult to
find jury members who were able to be truly impartial regarding the case. By
moving the court hearing to Wellington it meant that there was less chance
that the jury would be biased.
The criminal litigation system works to keep our communities safe. Generally,
in New Zealand we can be assured that dangerous criminals will put in jail
and given the rehabilitation that they need.
The criminal litigation system is able to identify cases that are serious (such as
category 3 and category 4 cases) and make sure that a procedure is followed
that ensures that defendants are tried fairly and that they are sentenced to an
appropriate amount of time of imprisonment.
Promotes safe
communities The Ministry of Justice states that:
“To maintain the integrity and improve the responsiveness of the justice
system, the Ministry continues to ensure there are safe and effective court
environments that can be accessed using high quality services.”2
2
http://www.justice.govt.nz/publications/global-publications/s/statement-of-intent-2012-2015/what-we-will-do

50
Weaknesses of criminal litigation
One weakness of the criminal litigation process is the high cost that is
involved. Criminal litigation is a very costly process, not only for the individuals
involved, but also for the New Zealand taxpayer. The high cost of processing
a crime places a severe strain on the New Zealand economy.
Cost
Another problem with the criminal litigation system in New Zealand is the
delays in processing criminal cases.
The average wait time for a jury trial in the Hamilton District Court is 329
days. Long delays cause unnecessary hardship for the defendant, victim,
and others involved in the crime.
Delays The New Criminal Procedure Act that came into force in July aims to speed
up the process. More cases will now be heard by the District Court (instead
of the High Court) and many low level cases can be dealt with by a Justice
of the Peace or Community Magistrate.
Another weakness of the court system in New Zealand is that it has

traditionally followed the British legal system and has failed to take into
account the cultural practices of Maori.
As treaty partners, it is believed that Maori should also have a say in the
operation of the legal system. Many people think that the legal system would
create better outcomes for Maori victims and offenders if there was the
Culture
option of implementing more culturally suitable processes.
Currently some processes that are better suited to Maori have been
implemented in the courts. For example, in Hamilton the Rangatahi Court is in
operation. This court allows Maori youth to hear cases relating to them at the
Marae with Maori elders and a judge. According to statistics the Rangatahi
Court has lower reoffending rates (44%) than traditional courts (51%).3
3
http://www.stuff.co.nz/national/crime/5707847/Rangatahi-courts-a-better-option-for-Maori-youth

51
Refer to Andrew’s scenario – discussed earlier in this lesson.

Yourself 1. Select one advantage of the criminal litigation system.
How does this advantage affect Andrew and his situation?
Impartiality: having impartial courts will mean that Andrew will get a fair
trial. The judge will look at his case fairly and, if he is found guilty, he will
receive a punishment that is fair and just. If the judge decides that Andrew
genuinely didn’t know that the goods were stolen and was not reckless, then
Andrew will not be charged with receiving stolen goods.
2. Select one disadvantage of the criminal litigation system. How does the disadvantage
affect Andrew and his situation?
The criminal litigation system is expensive for both the Crown and the
defendant. The Crown will spend thousands of dollars to prosecute someone
for allegedly receiving stolen goods. However, the goods themselves are only
worth $2500. Furthermore, Andrew will need to spend thousands of dollars
to pay a lawyer to represent him in court. It would be better if the issue
could be resolved in a more cost effective way.

52
Glossary
Legal terms
appeal to apply to a higher court to have the case heard again

binding an agreement that cannot be broken
civil litigation a court hearing between two civil parties
clause a part of a law or agreement
counsel a representative or lawyer
counterclaim a claim that is made to rebut a previous claim
criminal litigation a court hearing between an individual and the Crown
defendant an individual, company, or institution sued or accused in a court of law
dispute resolution a process of solving issues between two parties
evidence information to prove or disprove a claim
liable responsible
litigation legal proceedings in a court
mediator a trained professional who acts as a link between two parties
non-adversarial not involving conflict
parties people or organisations who are involved in a dispute
plaintiff a person who brings a case against another in a court of law
proceeding action taken in a court to settle a dispute
prosecution the party who started legal proceedings against another party
General terms
appraisal the act of assessing something or someone

autonomy the ability of a person (or organisation) to make decisions themselves
compensation money paid to make right something wrong that has been done
compromise reaching an agreement by altering ones’ goals or aims
impartial not favouring one side
objectives goals, aims
opt-out to choose to not be part of
resolve solve
tenancy possession of a place (but not owning it)
venue a place where an event happens

53

54

55

21 Ruakura Rd, Hamilton East,
Hamilton 3216
Phone: 0800 864 863
E-mail: instant@atc.org.nz
www.instant.org.nz
© ATC New Zealand


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US 27845 v1a

Unit Standard 27845

Explain litigation and

US27845v1a Learner's Guide Licensed to Western Heights High School

Licensed to Western Heights High School US27845v1a Learner's Guide

Arbitration Act 1996

US27845v1a Learner's Guide Licensed to Western Heights High School

Lesson 5: Civil litigation 26

Lesson 6: Strengths and Weaknesses of Dispute Resolution Processes 31

Lesson 7: The Criminal Litigation Process 41

Licensed to Western Heights High School US27845v1a Learner's Guide

US27845v1a Learner's Guide Licensed to Western Heights High School

We all have disputes in our day-to-day lives. We may have a dispute

Licensed to Western Heights High School US27845v1a Learner's Guide

There are many different formal dispute resolution processes that

In some disputes resolution processes, the parties discuss the issues

In other dispute resolution processes the parties work with a

In some dispute resolutions processes, a judge or other type of decision

The outcome of each dispute resolution process can also be different.

US27845v1a Learner's Guide Licensed to Western Heights High School

Litigation means ‘a legal proceeding in a court of law’. There are two

Civil litigation is both a dispute resolution process and a type of

Criminal litigation is not a dispute resolution process because it deals

Licensed to Western Heights High School US27845v1a Learner's Guide

Dispute resolution and litigation

There are a number of different dispute resolution and litigation

Civil dispute resolution processes used

Negotiation Conciliation Mediation An Arbitration Civil litigation

Litigation processes used

US27845v1a Learner's Guide Licensed to Western Heights High School

They have over $150,000 in savings and own a family home

Although they both agree that the property should be split

Issues that Roger and Leanne have:

Upon signing the contract, The Greenhouse paid Market U a

Licensed to Western Heights High School US27845v1a Learner's Guide

Negotiation is a form of dispute resolution where two or more parties

Party A’s Lawyer Party B’s Lawyer

US27845v1a Learner's Guide Licensed to Western Heights High School

Negotiation is often used for:

Contract disputes Property related Relationship property Disputes between

The parties and their lawyers will decide how

The parties will discuss what they think the

Each party will state what they hope to achieve

The parties will discuss solutions to the issues

The negotiation will come to an end when

Licensed to Western Heights High School US27845v1a Learner's Guide

Possible outcomes in a negotiation:

The parties come to an agreement that they

The parties come to an agreement that only

Another possible outcome is when both parties

Sometimes the negotiation breaks down and

Roger and Leanne’s case:

Would negotiation be a useful dispute resolution process

Who would the participants in Roger and Leanne’s negotiation

What process would Roger and Leanne follow?

US27845v1a Learner's Guide Licensed to Western Heights High School

Refer to the dispute between The Greenhouse and Market U.

2. Who would the participants in the negotiation be?

3. What process would the companies follow?

Licensed to Western Heights High School US27845v1a Learner's Guide

Underlying principles of negotiation: Types of negotiation:

Check your 1. In your own words, explain the different types of

Continued on the next page...