Discuss the Legally binding contract vs. Mediation Process-illustrate & explain
INTRODUCTION
To begin we better know what is a family,contract and social matters.
Family:
In human context, a family (from Latin: familia) is a group of people affiliated by consanguinity, similarity, or co-residence. In most societies it is the principal institution for the socialization of children. Anthropologists most generally classify family organization as matrilocal (a mother and her children); conjugal (a husband, his wife, and children; also called nuclear family); and consangui SSneal (also called an extended family) in which parents and children co-reside with other members of one parent’s family.
Family is also an important economic unit. Economic aspects of family are subject of family economics branch within economics field.
Social matters:
A social matter (also called a social ill or a social problem) is an issue that relates to society’s perception of people’s personal lives. Different societies have different perceptions and what may be normal behavior in one society may be a significant social issue in another society. Social issues are distinguished from economic issues. Some issues have both social and economic aspects, such as immigration. There are also issues that don’t fall into either category, such as wars.
Thomas Paine, in Rights of Man and Common Sense, addresses man’s duty to “allow the same rights to others as we allow ourselves”. The failure to do so causes the birth of a social issue. Social issues include amongst other things.
Contract:
A contract is an agreement having a lawful object entered into voluntarily by two or more parties, each of whom intends to create one or more legal obligations between or among them. The elements of a contract are “offer” and “acceptance” by “competent persons” having legal capacity who exchanges “consideration” to create “mutuality of obligation.’
Contract law varies greatly from one jurisdiction to another, including differences in common law compared to civil law, the impact of received law, particularly from England in common law countries, and of law codified in regional legislation.
Now we will try to understand how family matters and, social matters operate/execute a legal contract.
To be legally binding, a contract needs two essential components: 1) an agreement, and 2) consideration. Within the agreement and consideration lies an variety of provisions that add to the legality of a contract. These include the offer, performance, terms, conditions, obligations, payment terms, liability, and default or breach of the contract.
The agreement component involves offers, counter-offers, and eventually what contract law calls the “meeting of the minds.” An agreement can be either oral or written, depending upon the contract. If you hire a taxi to drive you to the airport, then it is an oral agreement that you will pay the driver a certain sum when you reach your destination. Contracts whose agreements must be in writing include real estate contracts and contracts that last more than a year. Every state has its own legal requirements and you should consult these requirements to find the specific regulations that pertain to your type of contract.
The agreement process involves one party offering terms and conditions that are either accepted or rejected by the other party. If the other party changes any term or condition of the offer, then the offer becomes a counter-offer. At this point, each party negotiates the terms and conditions of the offer until they have a meeting of the minds. This is when an agreement has been met and a contract can be drawn up.
Both parties must be capable enough to enter into the contractual agreement. They may not be minors (under 18 years of age), under the influence of drugs or alcohol, or of unsound mind. They also must have the legal power to enter into the agreement; this particularly pertains to people representing an outside interest, such as a company or third party. The main question becomes, “Do they have the legal power to carry out the terms of the agreement?”
For an agreement to be legal and binding, it must have some form of consideration. This means that all parties involved must receive consideration or something of value. Otherwise, it is considered a gift rather than a contract. The promise of a gift is not necessarily binding, depending upon the circumstances. Usually consideration involves one party giving something such as a product or service, and in exchange the second party gives some form of monetary compensation.
When compiling the agreement and consideration of a contract, the agreement must be clear as to what is specifically expected of each of the contracting parties. An ambiguity or confusion in any part of the contract can lead to problems when trying to enforce the provisions of the contract.
Although not legally required, each contract should contain several provisions known as “boilerplate” provisions. These include:
- Arbitration Clause — makes allowances so that disputes are handled by an independent arbitrator
- Entire Agreement Clause — states that what is written in the contract is what the agreements and conditions of the contact are, and no previous agreements or conditions are applicable
- Force Majeure Clause — states that should something happens beyond the control of either party (such as a tornado destroying a house while it is still in escrow), then the contract is no longer valid
Family settlement:
The parties to a family arrangement must be persons who have a right to the property and there must be mutualityamong them in the arrangement.A family arrangement,like a compromise,is based on the assumption that there is a antecedent title of some sort in the parties and the agreement acknowledges and defineswhat that title is ,each party relinquishing all claims to property other than that falling to his share and recognizing the rights of the others as they had previously assented it , to the portions allotted to them respectively.and arrangement between co parceners for the payment of marriage expensesof the female membersof a family is an enforceable contract. A bonafide family arrangement in a suit by which a female member surrenders her own right and in consideration therefor takes a share in the family property is valid.
The rule that a family settlement binds a minor member in the absence of a froaud,etc; proceeds upon the principal that the minor was properly represented by the father or manager of the family. The rule, therefore, has no application where the person entering into the compromise had no authority to make their compromise on behalf of the minor. It cannot be made binding by calling it a family settlement .For a family settlement to be valid there must be a bonafide dispute between the parties. The expression bonafide dispute means nothing more than that each party must press his claim to the property by litigation or otherwise. The only requisite required to make a valid family arrangement is that it should be a transaction between members of the same family which is for the benefit of the family generally,as for example one which tends to the preservation of the family property, to the peace and security of the family and the avoiding of family sispute and litigation ,or to the saving of honor of the family .The existence of a dispute or the assertions of a claim is not necessary. If the settlement be made to promote peace and goodwill between the certain members, there is a good consideration. The courts will not look too closely into the quantum of consideration. A trustee has no such interest in the property as will entitle him to enter into a family arrangement. A family arrangement is binding if made to prevent anticipated disputes actually arising .Although it is not essential that alla members of a family need be parties to a family settlement, yet a person vitally concern must be a party. The concurrence of an absent member must be subsequently obtained .It has been pointed out in “Ram vs Prayag’ that in order to render valid the compromise of a litigation, it is not necessary
That the question in dispute should really be doubtful if the parties bonafide consider it to be so. Family arrangements will be enforced if honestly made, although they have not been meant as a compromise but have proceeded from an error of all parties originating in mistake or ignorance of facts as to what their rights actually are or of the points on which their rights actually depend.
Legally binding contracts about divorce
Until the past decade, the main avenue to resolving the conflicts and consequences of divorce related to property, custody – access and maintenance issues has been the legal system. The adversarial legal system is thought, in many cases, to exacerbate these conflicts. Mediation is considered an alternative way to resolve disputes and to reduce conflict.
The focus of this discussion will be on mediation in divorce situations where couples are arguing or unable to reach agreement and make decisions about property, maintenance and custody – access issues.
Family/Divorce Mediation
The aim of mediation is ‘to assist parties (adults) to resolve specific disputes which may otherwise result in lawsuit through the Family Court’[1].
Mediation services are designed to assist separating or divorcing couples settle issues associated with child custody and access, living arrangements, property distribution and spouse and child maintenance. Mediators are men and women with family law or family and relationship counseling experience.In Bangladesh, there is an arbitration council within the every union porishod where the council mediate the family and social matters.In addition, disputed matters referred to the family court which is established under family law ordinance.
Effectiveness of Mediation
CDR Associates (1989) feels mediation is most likely to succeed where: the parties do not have a long history of litigation; there is some on-going relationship; the couple has a degree of psychological detachment; there are adequate resources to negotiate a compromise; hostility is not overwhelming; and there is acceptance of intervention by a third party.
In comparison to adversarial and unsuccessful mediation cases in divorce and child custody disputes, Pearson and Thoennes (1984) found those who had successful results from mediation were more likely to: be satisfied with the outcomes of decrees and court orders; perceive outcomes as being fairer; feel more confident of working out problems without further litigation; report greater spouse compliance with orders; have more generous visitation arrangements; be on better terms with ex-spouses.
An evaluation of family conciliation in England and Wales (Simpson, Carlyon, McCarthy and Walker 1990) expressed concern with the level of confusion on the part of clients about the objectives of conciliation, particularly in relation to whether there would be pressure towards achieving reconciliation. In this study clients were also unsure about the meaning of legal terms associated with custody and access. These results were more pronounced in clients of court-based services.
Conclusion:
When creating a contract, a negotiator is not only doing so to reach an agreement between two or more parties, but to create an agreement that is durable; whereby parties of the contract are legally bound and committed to its promises[2]. A legally binding contract is defined as an exchange of promises or an agreement between parties that the law will enforce, and there is an underlying presumption for commercial agreements that parties intend to be legally bound [3]
Provided an agreement is contractual in nature[4], and regardless of whether or not they have read it, a person is bound by a written contract as long as they have signed it[5]. Wade and Honeyman (2007, 7) describe a ‘durable’ contract as one in which all parties substantially perform without abandonment and without resorting to legal proceedings. With only anecdotal evidence, it is difficult to know what percentages of contracts are in fact breached. It is probable that the statistics vary greatly over differing class, culture, wealth and type of transaction[6] The reasons for a breach of contract are also varying, and ethical issues can emerge in some situations.
Some ethical considerations which may become apparent in the durability of contracts are cultural relativism and moral relativism.
Grace and Cohen (2005, 200) describe cultural relativism as the extent to which different societies and cultures have different values and ethical standards in the fields of business and organizational life. Those who embrace cultural relativism believe that all beliefs (religious, ethical, aesthetic, and political) are relative to the individual within a culture. Types of relativism include moral (where ethics depend on the social assembly), situational (where right or wrong is dependent on the situation), and cognitive (where truth itself has no objective standard). The legislative system is having a harder time defining laws with the diminishing set of standards, and our court system is having a harder time interpreting them[7]. Moral relativism views ethical standards, morality, and positions of right or wrong as being culturally based. This therefore subjects these views as being an individual’s choice. While modern society was previously governed by a “Judeo-Christian” standard, this view has increasingly been acknowledged as the chief moral philosophy of modern society[8]. However, these “Judeo-Christian” standards continue to be the foundation for civil law, as most people believe that right and wrong are not absolutes, but are determined by the individual.
In most of these situations, the law may not agree with moral or cultural relativism and award in favor of what people generally view as being ‘right’ or ‘wrong’. It is therefore essential that contracts are created to be as durable as possible so parties are unable to find legal ‘loopholes’ and use their power, wealth, ignorance or cultural differences in setting contracts aside.
Reference:
DUTT on CONTRACT, THE INDIAN CONTRACT ACT 1872, 5TH EDITION ,EASTERN LAW HOUSE. BY A.C SEN, M A L.L.M. FORMER JUDGE CALCUTTA HIGH COURT.
http://www.aifs.gov.au/institute/pubs/fm1/fm28/iw.html
http://www.thedailystar.net/newDesign/index.php
http://www.prothom-alo.com/index.php/
http://en.wikipedia.org/wiki/Ethical_implications_in_contracts
<href=”#ixzz2LadeGDf3″>http://www.allbusiness.com/legal/contracts-agreements/731-1.html#ixzz2LadeGDf3
[1] [1](Attorney-General’s Department 1988).
[2] (Wade and Honeyman 2005, 7).
[3] (Contracts 2007).
[4] (Curtis v. Chemical Cleaning and Dyeing Co[1951] 1 KB 805)
[5] (L’Estrange v Graucob [1934] 2 KB394).
[6] (Wade and2005, 7).
[7] (Cultural Relativism – Illogical Standard 2006).
[8] (Moral Relativism – Neutral Thinking?. 2006).