Recently, a lot of clients have come to us and ask for mediation of their disputes. These disputes include: financial disputes between parents and children, differences and disputes between husband and wife, disputes between partners and shareholders of the company, and labor disputes with employers.
As the saying goes, "there is no irresolvable thing in the world." People inevitably encounter disputes in their lives and conflict with others. If the two sides do not agree, find a place to discuss. Going to court is the most common choice. In fact, for the settlement of general civil disputes, in addition to the courts, there are many non-litigation mediation agencies. The settlement of disputes by means of mediation is more time-saving, labor-saving, money-saving, and saving judicial resources than going to the court. However, people worry that the effectiveness of mediation does not have the strength of a court decision, then, can we link up litigation and non-litigation means to resolve conflicts and disputes better? The first choice for resolving disputes should be mediation and litigation should be the last choice. While mediation may not be 100% satisfactory, it prevents both sides from losing and losing. In this issue, we talk about the legal issues involved in the shareholder dispute.
1. What are the advantages and disadvantages of litigation?
"lawsuit" is what people usually call "litigation". According to the different nature of the lawsuit, the lawsuit can be divided into three types: civil action, administrative litigation and criminal procedure. Civil disputes arising from property relations and personal relations, such as inheritance, real estate, damages, divorce, maintenance, child maintenance and various contractual disputes, may be resolved by law by bringing a lawsuit to the court. The judgment made by the court according to law has the force of law, and the parties involved in the case must be executed. The downside, however, is a lack of autonomy and flexibility, time-consuming, costly legal costs and uncertainty.
II. What is mediation (Mediation)?
Non-litigation resolution mechanism, that is, Alternative Dispute Resolution (ADR), is often translated as: non-litigation resolution mechanism, alternative dispute resolution, alternative dispute resolution procedures, out-of-court dispute resolution, non-litigation dispute resolution. Non-trial dispute resolution, etc. ADR has the characteristics of substitution, selectivity and dispute resolution.
Mediation (Mediation) is a voluntary and flexible way to resolve problems, designed to help design the two sides of the dispute through negotiation, negotiation and compromise, and to reach a mutually acceptable solution. Throughout the mediation process, a government-registered, professionally qualified mediator, (Mediator), presided over the mediation process. Mediators must be neutral and be responsible for assisting both sides in communicating and not participating in the views of either side. In confidentiality, in the form of an agreement, the mediator fixed the terms and conditions agreed upon by the parties. The decision on the terms of settlement and settlement rests with the parties involved in the conditions.
III. What are the strengths and weaknesses of mediation?
Compared with litigation, mediation can save time, money, do not hurt peace, both sides can achieve win-win situation. Even if the mediation fails, both sides can continue court proceedings.
The main advantages of mediation are as follows: first, it can reduce the antagonism of litigation proceedings, promote mutual understanding and mutual accommodation and friendly cooperation between the parties, which is conducive to safeguarding the long-term interests and friendly relations of the parties in resolving civil disputes; Second, the procedure is flexible, it can solve the dispute quickly, simply and economically, relieve the pressure of the parties, reduce the litigation cost, and achieve the organic unity of the legal effect and the social effect of handling the case; Third, mediation emphasizes the active participation of the parties, which is conducive to the full exercise of the right of disposition of the parties; Fourth, the mediation agreement is based on the agreement and is more easily accepted and voluntarily performed by the parties, which can avoid the difficulties in enforcement and realize the organic unity of mediation and execution. Fifth, when the substantive legal norms are not perfect, the parties can explore a win-win trial result through consultation and compromise in mediation. Sixth, through mediation to resolve disputes, there is no court judgment, do not leave a bad credit record.
Classic mediation case
Mr. Wang worked for XX Trading Company as head of department. The company assessed Mr. Wang's competence and confirmed that Mr. Wang was not up to the current job. After the training is still not competent, the two sides have a dispute, many negotiations have not reached agreement.
Mr. Wang chose our mediation service after negotiations with the company failed. After we contacted the trading company and confirmed that both sides had the will to mediate, we appointed a professional lawyer for mediation. After several times of communication between the lawyer and both parties, it was found that the employee manual of the trading company had not been served to Mr. Wang by public procedure. Therefore, there was no clear basis for the performance appraisal of the trading company. It is illegal for the company to cancel the labor contract according to the unpublished employee manual. On the basis of professional analysis, lawyers communicated with both sides many times. Finally, both sides agreed that the company would pay Mr. Wang a lump sum of 30, 000 Australian dollars, thus ending the dispute between the two sides. In the win under the witness of the platform, the two sides signed a settlement agreement, and payment of mediation payments.
The lessee, Ms. Li, and Mr. Zhang, the lessor, signed the Retail Leasing contract. On the same day, Ms. Li gave the other party a deposit of 10,000 yuan. After that, Ms. Li gave Mr. Zhang a rent of 20,000 yuan, with a total of 30,000 yuan for Mr. Zhang. However, after Ms. Li moved, Mr. Zhang did not rent all the shops to Ms. Li, and it was not long before the government had to move the road again. As a result, Ms. Li has lost both the cost of relocation and the loss of re-renting. As a result, there was a dispute between the two sides, and there was no agreement between the two sides in many negotiations.
Ms. Li found us and entrusted us as mediators in the hope of reconciliation with Mr. Zhang. We gave each other a letter from a lawyer, and the other side wished to conciliate. After obtaining mutual consent, our professional mediators conducted mediation, and after many separate communications with both sides, the two sides finally agreed that Mr. Zhang paid Ms. Li 30,000 yuan at one time, and the dispute between the two sides was ended. Under the witness of our mediators, the two sides signed the settlement agreement, paid the mediation payment, and finally shook hands.
Mr. Zhao, the man of the man, was married with Miss Han, and had a son after the marriage. In January of 2017, Miss Han found that Mr. Zhao had marital status, so Miss Han proposed a divorce. The two sides have bought a house after marriage and are still lending.
Since Mr. Zhao and Miss Han have a good emotional foundation before marriage, both sides also have a lovely son in the marriage, Miss Han does not want to face the cheating husband, but hopes to entrust a third party mediation, peaceful divorce. After accepting the mediation entrustment of Miss Han, we appointed a professional mediator to communicate with Mr. Zhao. On the premise that Miss Han agreed to divorce, the lawyer confirmed that the mediation could continue. After a number of communications, it was determined that the focus of the dispute was that both sides wanted to raise their son. Eventually, after mediation, the two sides finally reached an agreement on the maintenance of their son and divorced peacefully.
Mr. Ma, the owner of a decoration company, recently took over a $ five hundred thousand renovation project and had a dispute with the owner over quality and scope of construction. Despite Mr. Ma's request to repair and improve the quality of the project, the owner still failed to pay A $40, 000 for the project. Mr. Ma consulted a lawyer and suggested taking a lawsuit, but Mr. Ma did not have time to accompany him, and the lawyer's fee was 15. 5. After measuring, with a try, Mr. Ma came to our center, hoping that we could settle the dispute through mediation. We contacted the owner and Mr. Ma in time to participate in the mediation meeting, both sides found out where the problem and the solution to the problem, so that the two sides got a satisfactory result. Mr. Ma spent only A $2000 in mediation fees and recovered the end of the project.
The Australian Arbitration and Mediation Centre is a government-registered, professionally qualified mediator, (Mediator), which provides quick, definitive dispute resolution for clients who do not want to go to court, resolves difficulties and saves you litigation fees, attorneys' fees, Transportation costs, as well as the claims of the other side of the excessive costs, at the same time to the two sides of the dispute to guide, do not go to court, to avoid the intensification of contradictions between the two sides, the relationship broke down.
For more advice on arbitration, please contact us.
Supply: The Australian Arbitration and Mediation Centre (the content of this article is purely a reference and is not a legal recommendation). )
Address: Suite 801, Level 8276 Pitt Street, Sydney NSW 2000 (3 minutes from Town Hall Railway Station)
Tel: 61 2 9267 5488
Email: [email protected]
Web site: www.auam.com.au
