Mediation A difficult conversation Mark Whittell Mediate North - - PowerPoint PPT Presentation
Mediation A difficult conversation Mark Whittell Mediate North Seminar outline The issues in a purchasing dispute Battle of the Forms Mediation - the principles and process How to prepare - before the meeting, and on the day
Mark Whittell Mediate North
The issues in a purchasing dispute – Battle of the Forms
Mediation - the principles and process
How to prepare - before the meeting, and on the day
Negotiating tactics
Using your mediator
Realistic settlements
The implications of refusing to mediate
Mock mediation
buyer or seller?
terms differ. This is the "battle of the forms".
The Butler Machine Tool Company quoted a price for a machine with specific terms and conditions for purchase outlined on the back. These terms included a price variation clause which allowed the seller to increase the price if there was an increase in the manufacturing costs. The purchaser sent back an order form outlining their own terms and conditions, which did not include a price variation clause. Attached to this order form was a tear
The seller’s returned the signed slip but when the machine was delivered in November 1970 they claimed an additional £2,982 under the price variation clause. The buyer disputed this arguing there was no price variation clause in the final contract.
thereby establishing whether the seller (Butler Machine Tool Co) could rely on a price variation clause which was present in the standard form.
Beav 334; 49 ER 132 and states that the effect of a counter-offer is to kill the original offer.
for use in motor vehicles. Some of the sensors supplied were defective and GHSP sought to claim damages from AB. If the contract had been formed on the basis of GHSP's standard terms AB would have unlimited liability, whereas if AB's standard terms governed the contract its liability would be significantly limited.
been accepted by the other party. Instead, it was held that by proceeding to purchase and supply the sensors, the parties had by their conduct concluded a contract that was governed only by the terms implied as a matter of English law by the Sale of Goods Act
the limitation of liability clause it had attempted to incorporate through its standard terms.
for tinned corned beef. The supplier delivered part of the order from March-April 1997, and invoiced for it, but failed to make any more deliveries after 25 April 1997 because
supplier refused to resume deliveries until the invoice had been paid in full and sued. The buyer counter-claimed extra costs of purchasing the goods from alternative suppliers and other losses.
terms contained a force majeure provision that it was not liable for non-delivery caused by matters beyond its control. The buyer's conditions entitled it to cancel the
enough to bring it to the buyer's attention that the seller intended to contract on its own terms in the future in the absence of any agreement to the contrary. As there was no agreement to the contrary, the Judge concluded that the seller's terms also applied to the December contract.
that its conditions should override the conditions of the other; and second, that each party was aware that the other was only prepared to contract based on its own terms and that the other party's standard terms contained a clause to the effect that they should prevail. The court could not find any agreement that either set of standard conditions was applicable.
could rely on its set of standard terms, which were drafted to give them the protection they needed in the
provision and the buyer was entitled to damages.
Overview
assists parties in working towards a negotiated agreement of a dispute or difference, with the parties in ultimate control of the decision to settle and the terms of resolution."