Theory of Dispute Resolution - Case Study Example

 Theory of Dispute Resolution A letter of advice to Mr. Conn, on the most appropriate dispute resolution mechanism Introduction The dispute represented in this case falls under the law of supply of goods and services. The relevance of this letter is to make Mr. Conn fully aware of the facts under this case, and the liabilities borne by different parties, and finally advise on the appropriate dispute resolution mechanism to be applied, among negotiation, litigation and mediation. Facts of the case According to the law of supply of goods and services, there are certain implied terms during the transfer of goods from the transferor to the transferee, most important being that the goods transferred are of good quality and fitness. This means that the transferor of goods has the obligation to ensure that all the goods transferred to the transferee are of satisfactory quality, and therefore, will perform their desired functions without failing. Thus according to this law, transfer of faulty goods from the seller to the buyer is an offence. According to the facts of this case, Frontway Clutches Ltd. Sold repair parts to Mr. Conn, who is a garage owner, which turned out to be faulty, and thus inappropriate to fulfill their intended purpose. Consequently, he bears the responsibility of compensating the other party, namely Mr. McScrooge. However, the facts under this case are complicated by the fact that the substance or the commodity under dispute is unavailable for examination, which is an essential step towards proving the inappropriateness of the commodities supplied by Frontway Clutches Ltd. While Frontway Clutches Ltd. could be required to compensate Mr. McScrooge for the extra expenditure that he incurred in replacing the faulty clutch, it would not be possible without the examination and determination of the inappropriateness of the clutch, as sold by Frontway Clutches Ltd. Therefore, it is required that Mr. McScrooge provides the clutch that was fixed in his van by Mr. Conn, which would be the substance of this case. Nevertheless, the case could be determined otherwise. On the event that it is determined that Mr. Conn was fully aware of the faulty conditions of the clutch, before he fixed it on Mr. McScrooge’s van, then he might bear the responsibility. Additionally, the burden of responsibility would even be bigger for the supplier, if the supplier was aware that the clutches that were sold to Mr. Conn were faulty. Therefore, while the substance of this case would majorly revolve around the quality and fitness of the commodity sold, the law would also be interested in discovering the intentions and the awareness of the parties involved in the sale and fixation of the car clutch. Liabilities of the parties involved Mr. Conn is the ultimate center of conflict in this case, considering that he is the one responsible for fixing the clutch that failed in Mr. McScrooge van, while on the other hand he had received the clutch from Frontway Clutches Ltd., without suspecting that the clutches had any problem. He remains in the center of dispute because; he is required to pay for the extra expenditure incurred by Mr. McScrooge, yet he is not responsible for the supply of the default clutch. While he would like to pass on the responsibility to Frontway Clutches Ltd., it proves difficult since he does not have the faulty clutch that would act as the evidence. In this case, all the parties involved in the dispute have made certain errors, which leave all the parties liable. First, Frontway Clutches Ltd. Supplied faulty clutches to Mr. Conn, thus the supplier is responsible for failure that occurred in Mr. McScrooge’s van. Second, even though Mr. McScrooge suffered the failure of the clutch, he did not present it to Mr. Conn as the evidence that the clutch he had fixed in his van was faulty. This passes the burden of error on to Mr. Conn, who is not able to avail the faulty clutch as evidence to the supplier, so that the supplier can compensate Mr. McScrooge for the loss. Nevertheless, the dispute has to be solved and a resolution reached at, which will leave all the parties involved satisfied. Recommendation on the choice of the most appropriate dispute resolution mechanism There are various methods of dispute resolution that can be applied in this case, to ensure that all the parties involved are satisfied with the agreement reached. The three parties who bear responsibility in this case can opt to apply negotiation, mediation or litigation to solve the dispute amicably. While considering the best method that should be applied, it is essential to put into consideration all the circumstances surrounding the case, the likely consequences and the interests of different parties in this case. While all the three methods can be applied to bring the dispute to an agreeable solution, it would be in the best interest of the parties involved to apply a method that would not take long to resolve the dispute, since the longer a dispute takes to resolve, the higher the inconveniences and the costs involved. Secondly, it would be in the best interest of Frontway Clutches Ltd. To solve the dispute outside the public limelight, since the business does not want to have its reputation damaged regarding the nature of the repair parts that it supplies. It is also in the interest of Mr. Conn that the dispute is solved without involving outside parties, since his reputation would be soiled, though the revelation that he uses faulty repair parts to repair his customers’ vehicles, which would tarnish the name of his garage. In this case, it is relevant to apply the premise of the negotiation theory, which provides that groups of reasonably bright people are in a position to make, and should make joint collaborative decisions, which are agreeable by all parties. This premise holds that reasonable individuals should engage themselves in establishing the solution for a problem that is facing them, at the expense of relying on other parties to guide them and impose a decision on them. Through the application of the premises of the negotiation theory, all the interests of the parties involved are covered. This is because, the application of negotiation as the dispute resolution mechanism would mean that the dispute would take relatively short time to reach an agreeable solution, which would go a long way in eliminating the inconveniences caused by the dispute to all parties. Secondly, the application of negotiation theory points to the possibility of reasonably bright individuals reaching a joint decision on their own, which eliminates the need for third parties and other intermediaries, who would delay the process, while at the same time breaching the privacy and confidentiality of the case, by making it open to the public. Considering that the parties involved are against publicizing the case; since it would damage the reputation of their businesses, it is therefore wise to abide by the premises of the negotiation theory, which postulates that the parties involved in a dispute can resolve it on their own, without calling for the intervention of third parties. Therefore, it is recommended that Mr. Conn works for the application of negotiation as the dispute resolution mechanism for this case. While selecting negotiation as the best mechanism for addressing the dispute, various considerations have been made. First, the interest of the parties involved has been catered for by selecting negotiation. Considering that the case involves three different parties, chances are high that each party has its own interest, which may not necessarily conform or deviate from that of the other two. The first party in this case is Mr. Conn. His interest would be to see this case resolved within a short duration, since it would eliminate the inconveniencies and the baggage that the case has caused him. Secondly, Mr. Conn is interested in seeing the case resolved privately without involving the public or other third parties, since making the dispute public would damage the reputation of his career and his garage business. Therefore, it can be clearly seen that the application of negotiation as the dispute resolution mechanism for this case would favor Mr. Conn’s interests. It is through the realization of these facts, that a recommendation that Mr. Conn pushes for the application of negotiation to resolve the dispute is made. However, considering that the other parties involved in this dispute has their own interests, Mr. Conn has the burden of convincing them that negotiation is the best way to follow while working towards reaching a collaborative agreement. In doing this, Mr. Conn has to show the other parties that his preference for negotiation is also convenient for them, while also convincing them that it favors their interests. To succeed in convincing Mr. McScrooge and Frontway Clutches Ltd., that negotiation is the most suitable dispute resolution mechanism for the case at hand, Mr. Conn must succeed in showing them the disadvantages associated with the other two dispute resolution mechanisms that are applicable in this case, namely mediation and litigation. Regarding the application of mediation as a dispute resolution mechanism, Mr. Conn should point out to the other parties that it would call for the inclusion of a third party as the mediator in the resolution process. This would mean that the process of resolving the conflict will have to take a little longer, since the parties must look for a mediator who is agreeable by all of them, to mediate through the process. This would mean a delay in the process of resolving the conflict. Secondly, Mr. Conn should point out that mediation as a dispute resolution mechanism calls for the involvement of a mediator who is neutral, and thus does not give any advice to any party, regarding the case at hand. This means that the use of mediation would be unnecessary, since it would call for the inclusion of a third party, who hardly adds any value to the process of seeking for an agreeable decision. Additionally, the inclusion of a mediator would hinder the freedom of the parties to discuss the issues pertaining to the case freely, since some parties may not be comfortable to reveal all the details and the concerns they might have for this case to the mediator. Through pointing out the inconveniencies caused by mediation as a dispute resolution mechanism to all the parties involved in this case, Mr. Conn will succeed to lure the other parties to agree on negotiation as the best mechanism. However, the other parties may not easily accept to apply negotiation, without having been made to understand why litigation should not be selected as the best method for resolving the dispute. Therefore, Mr. Conn should be in a position to point out the disadvantages associated with litigation as a dispute resolution mechanism for this case, which may not favor the parties involved. First, Mr. Conn should point out that the application of litigation would be inconvenient for all the parties involved, since it would call for the parties to follow the due legal process of litigation, which would take long to have the dispute resolved, an aspect that is against the wish of all the parties involved. Secondly, Mr. Conn should also point out that the application of litigation as the dispute resolution mechanism for this case would be detrimental to the parties involved, since it would be an expensive affair, involving expenditures such as lawyer’s fees. This would increase the financial burden to be borne by the parties, on top of the compensation that will have to be made to the party that experienced loss, out of all the dealings that the parties had. Finally, it would be prudent for Mr. Conn to point out that litigation is a public process, which is exposed to public scrutiny. This means that there will be no confidentiality in the process of resolving the dispute, which is among the crucial interests that the parties want to safeguard, to avoid damaging the reputation of their businesses. Through pointing out all these disadvantages that are associated with both mediation and litigation as the mechanisms for resolving the dispute, the parties involved will finally settle for negotiation, which appears to favor all of their interests, both common and diverse. To crown the recommendation for the application of negotiation as the most appropriate dispute resolution mechanism for this case, several advantages are highlighted, which would favor all the parties involved in this case, as well as fulfill their interests. First, negotiation is a very flexible dispute resolution mechanism, which is not guided by any formal procedure. This leaves an open space for the parties involved in negotiation to evaluate all the facts of the case, while applying them to suit the favoring and the opposing interests of the parties involved, allowing them to eliminate any inequalities in the bargaining and decision making process. Secondly, negotiation is a dispute resolution mechanism that caters for mutual interests. As opposed to other dispute resolution mechanisms such as litigation and arbitration, negotiation does not enforce a formal or predetermined solution on the parties involved in a dispute, but rather allows them to bargain based on their interests, and reach an agreement that favors their mutual interests. Additionally, as opposed to the formal legal process, negotiation is voluntary, meaning that the parties involved in a dispute enters into negotiation out of their own volition, as opposed to attending legal sessions in arbitration and litigation. Negotiation is a dispute resolution mechanism that allows for individuals to maintain their privacy and confidentiality while resolving their dispute, since it does not entail the involvement of a third party. This allows the parties involved to resolve their issues without having their reputation damaged, which is an essential requirement for this case. Therefore, based on these facts, it is recommended that negotiation be applied as the dispute resolution mechanism for this case. Read More