In order to assist in any proceedings, it’s paramount to ensure that some form of agreement is in place prior to commencement of action(s). Why is this important? An adjudicator’s role is fundamentally looking for consent among the parties – contracts must have consent. Therefore, an adjudicator will carefully determine whether there’s consent throughout each step of the proceeding by “listening” to the parties and reading the records before the court in context to the law brought into the court by the parties.
It’s important to note that one’s actions can also unknowingly provide consent.
Having an agreement in place prior to court (or the development of an agreement whilst the proceeding are ongoing or during a continuance) will vastly assist the court in the final judgement. In fact a court will have no subject matter jurisdiction if the matter is resolved.
Some considerations for gaining an agreement with an opposite party on the private side:
- Never Argue
- Running a administrative process on the private side
- Resolve the original charges on the private side
- What laws will be brought into the administrative process(es) and don’t mix jurisdictions
- Ensure the administrative process is directed to one that can legally bind the corporation such as the CEO or CFO
- Using a 3rd Party Presenter/Acceptor of records to ensure your record is genuine (eg exception to the hearsay rule)
- You can prove nothing – the onus of proof must be placed on the opposite party (maxim of law: The burden of proof lies upon him who affirms, not on him who denies)
- The creation of an authenticated record between the parties
A private agreement cannot be brought into public court, it must be sent to the adjudicator in chambers privately for review.
It’s all contracts. Maxim of Law: The Contract is the Law