Pros and cons of binding arbitration vs. court of law? Some websites specify in their terms of service that disputes shall be resolved by binding arbitration rather than by going to court. What is the pros and cons of specifying binding arbitration vis-a-vis a court proceeding?
Usually web site owners will prefer arbitration and people who would potentially sue web site owners will prefer a court forum, but this is only a typical situation and not a die hard rule for all circumstances. Features of arbitration: Binding arbitration is not subject to appeal so it tends to favor repeat, low stakes litigators over one-time high stakes litigators. Binding arbitration precludes class action lawsuits and punitive damages in most cases. Binding arbitration creates an institutional bias in favor of the contract drafter because the arbitrator needs to rule in their favor to get future business from the party selecting arbitration v. non-arbitration. Binding arbitration has much higher filing fees than ordinary court and is usually faster than ordinary court, but litigation costs for the parties tend to be similar to ordinary court. Binding arbitration has a reputation for "baby-splitting results" rather than all-or-nothing decisions in favor of one side or another. Binding arbitration can escape biases (e.g. anti-gay, anti-religious minority, anti-marijuana, pro-local citizen) that might exist in a local court system. Binding arbitration generally allows for much more irrelevant evidence to be admitted, and binding arbitration decisions cannot generally be overruled on the grounds that the arbitrator failed to follow the law or completely screwed up in understanding the facts. There is a much weaker likelihood of getting a fair result. Binding arbitration is generally not public, so the proceedings are generally secret, avoiding publicity and disclosure of secrets discussed in the proceedings. Arbitration often considers written documents like letters and witness statements in circumstances where courts in the U.S. would require in-person testimony (this is less of a consideration outside the U.S. where the hearsay rule is much less strict or is non-existent). Arbitrators are more often subject area specialists in the matter that is disputed. Arbitrators are less likely to reinterpret language in a TOS in terms of policy considerations or judicial precedent glosses (i.e., they are more likely to read contracts literally). Arbitration awards are not immediately enforceable and must be filed with a court in a summary proceeding to be enforced which makes them inconvenient for cases that are mostly uncontested. Arbitration awards don't create precedents that can be used in future cases. Arbitration can more often be decided without an in person hearing than court cases, even in situations where there are factual disputed between the parties. Features of court: Filing fees in court cases are cheap. Judges in courts tend to be far more impartial than arbitrators. Court decisions are immediately enforceable without a collateral enforcement action. This is particularly important when preliminary relief like a temporary restraining order or preliminary injunction is desired. Court decisions that are incorrect under the law or not supported by the facts can be appealed. They are much more likely to follow the law. Less irrelevant information is considered in a court decision. Court decisions can serve as precedents in future cases. Jury trials and class actions are often available in court cases. Court decisions are more likely to clearly rule in favor of the party in the right and against the party in the wrong without "baby splitting." Judges and juries in courts are "generalists" who are less subject to institutional capture than arbitrators (especially specialist arbitrators). Court is a more favorable forum for one-time, high-stakes litigation. Courts can have jurisdiction over people who aren't parties to an arbitration agreement but who may be necessary to grant full relief or who have a stake in the outcome. Punitive damages are often available in court cases when they wouldn't be available in arbitration forums.
There is a firm difference between giving advice on "what the best decision is likely to be" and "what decision to make". The former is what lawyers must do, which comes from: Conduct and Client Care Rules: Whatever legal services your lawyer is providing, he or she must— discuss with you your objectives and how they should best be achieved: give you clear information and advice: Lawyers and Conveyancers Act 2006: legal work includes— advice in relation to any legal or equitable rights or obligations: So, there is nothing in the law that requires lawyers to advise you on "what decision to make". Instead, they explain to you the range of possible decisions and what ramifications / implications / consequences they have. They won't make the choice for you — it's always yours. Is it legally correct that a lawyer is not permitted to provide advice on what decision to make It is not strictly true that a lawyer "is not permitted". Rather, they are not obliged to do so. And they have a damn good reason not to: there is a huge difference between being responsible for legal facts based on which you make decisions, and being responsible for decisions themselves.
It isn't worth litigating a $60 fine for a non-moving violation that isn't likely to recur. You have a less than 50-50 chance of prevailing (something that is almost always true when you are appealing the decision of a judicial officer in a context like this one), you have no real long term harms as you would in the case of "points" for a moving violation, and you are even less likely to get costs of litigation or attorneys' fees if you prevail, so not having to pay a $60 fine would be a pyrrhic victory from an economic perspective. Even if it is free (and it probably isn't) it would easily take many hours to litigate that isn't worth you time. Any lawyer who would take the case would be cheating you because they would only leave you worse off than you are to start with due to their fees.
In the event of a dispute, the person resolving the matter, probably an arbitrator in the case of a commission dispute between two realtors and either an arbitrator or a judge and jury depending upon what your listing agreement says about that issue, would hear the testimony from both parties and decide. The intent of the parties is supposed to govern in cases of clerical errors, but a signed document has a lot of weight, especially in such a prominent term. It is a little hard from the way the question is posed to determine who is willing to correct the typo and who insists on enforcing the contract containing the typo.
It is not necessary for an agreement to be verbose and written by a lawyer, for it to be binding. There is some danger in having untrained people writing up agreements (they don't know the distinction between "what the law says" versus "what we had in mind"). The agreement is binding, but their interpretation of the contract language does not automatically prevail. The statement "ALL TUTORS ARE PAID 8 HOURS, unless told otherwise" is slightly problematic since it is not true (you can't pay time, you pay money for time spend). With no other statements about time and payment, and just looking at the words, this says that an employee will be paid for 8 hours work, period. Unless they say something different. That could mean "even if you work 20 hours, you only get paid for 8" (illegal under various labor laws), or it could be "even if you only work 2 hours, you get paid for 8" (the most reasonable interpretation). The interpretation "You are limited to 8 hours of work per pay period / contract" is not a reasonable interpretation: that isn't what the clause says. Such a limit could be clearly expressed ("can work up to 8 hours" is a clear way to state the limit), and since they didn't say anything like that, that is not how the courts will read the clause. They can, however, inform you otherwise, e.g. say "your minimum automatic pay is now 2 hours", or "we will only guarantee 2 hours work", and at that point that's what the number is. Since this is (presumably) a take-it or leave it contract which they wrote up and you didn't actually negotiate, any unclarities are legally interpreted in your favor. If you have worked more than 8 hours and they are using the contract language to argue that you won't be paid for the overage, that is not at all likely to hold up in court. Under terms of the contract (interpreted as stating a minimum guarantee of hours), they can inform you that your new minimum is 0 hours. Also, unless there is some kind of tenure clause, they can terminate the contract at will, and maybe they'll hire you under a different contract. What the terms of employment were for you in the past does not matter, what matters is what the current terms are. If you did not pay attention to the fact that they changed the terms of the agreement as of this quarter, that is not their problem. If they decided to change to "actual hours worked" after the current contract was formed, and they informed you of that fact later, then thereafter that is what the agreement is. Until you are notified of that change, the guaranteed minimum is what it says in the contract. In case their argument is "The university sets this policy, the department made a mistake in not informing you", the university has to take responsibility for the errors of their inferiors.
Because threatening a lawsuit is a nuclear option If you are thinking about a lawsuit then you have a dispute. The best, most efficient, most effective and cheapest way to resolve a dispute is to negotiate a settlement. The best, most efficient and quickest way to derail a negotiation is to make threats. People don't like being threatened. It makes them upset and angry. People who are upset and angry like to make the person who made them upset and angry upset and angry in return. This rapidly leads to an escalation of tensions often to the point that the thing (a lawsuit) that was previously only one option out of many is now the only option. So instead of resolving the dispute cheaply, quickly and under the control of the parties to the dispute, it gets resolved expensively, slowly and by someone who doesn't give a rat's arse about the parties. Lawyers can't make empty threats Lawers have an ethical duty not to make threats they don't intend to follow through on. A lawyer who makes empty threats of lawsuits can be censured.
Because disputes are expensive, time-consuming and generally not fun An ambiguous term is a dispute waiting to happen. Far better to resolve the ambiguity and correctly allocate (and price) the risk at the start of a contract when nothing is at stake then have that term be at the centre of a dispute with $10 million on the table that both parties think is theirs. At best, a dispute strains the relationship, at worst, it involves time and costs putting the matter before an arbitrator or a judge and hope the resolve the ambiguity your way. I prefer to play roulette at a casino not a courtroom. Contra preferentum is unlikely to be a successful argument in any form of non-determinative dispute resolution - essentially the proffering party is never going to agree that it applies. Further, contra preferentum is a last-resort resolution mechanism. Maybe what you read as ambiguous is actually clear. Or clear in context, or clear when industry norms are considered or when past dealing or current dealings between the parties are considered. Relying on it is a real long shot. Also, almost all B2B contracts explicitly exclude contra preferentum as a method of resolving ambiguous terms.
Contracts don’t need to be signed Unless they are of a class that does - NDA’s aren’t. If the parties agree to a contract then it binds them. You agreed and your evidence for doing so is your signature. They agreed and their evidence for doing so is your signature on the contract they gave you.