ADR Survey Formative Assessment Questions Flashcards
Adjudicative and consensual methods differ based on:
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Who will pay for the filling fees.
The theoretical underpinnings of the conflict.
Who will determine the outcome of the dispute.
The presence of attorneys on each side.
Who will determine the outcome of the dispute.
What is the difference between a position-based process and an interest-based process?
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Mediation and negotiation never involve positions, since they focus exclusively on resolving the needs or motives that underlie each parties’ position.
Adjudication is always a position-based process, whereas negotiation is exclusively an interest-based process.
A position-based process tends to have parties asserting positions opposing each other; interest-based processes include attempts to reconcile the parties’ interests by finding a solution satisfying the underlying interests of both parties.
Litigation never involves interest-based processes, because it only acknowledges people’s positions, or what someone says she wants or is entitled to have.
A position-based process tends to have parties asserting positions opposing each other; interest-based processes include attempts to reconcile the parties’ interests by finding a solution satisfying the underlying interests of both parties.
Which of the following correctly states the distinction between mediation and binding arbitration?
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Arbitration results in awards that are binding, whereas the settlement agreements resulting from mediation are just contracts that are unenforceable and thus non-binding.
The arbitrator is the decision-maker in arbitration, whereas the parties are the decision-makers in mediation.
Mediation is informal and not bound by the law, whereas arbitration is a formal process that relies on established legal precedent.
Mediation is exclusively interest-based, whereas arbitration is exclusively position-based.
The arbitrator is the decision-maker in arbitration, whereas the parties are the decision-makers in mediation.
What reasons might motivate parties to choose to arbitrate a dispute instead of going to trial?
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Because they want a decision-maker who really knows the subject matter.
Because they want to preserve all of their legal rights.
Because they know that arbitration will always be faster.
Because they know that arbitration will always be less expensive.
Because they want a decision-maker who really knows the subject matter.
Which of the following is a true statement regarding the qualifications required to be an arbitrator?
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Arbitrators must be licensed by the state before they may hold themselves out as arbitrators.
Arbitrators must be certified as arbitrators before holding themselves out as arbitrators.
Arbitrators must hold a terminal degree in their given field of expertise in order to hold themselves out as arbitrators.
There are no requirements to be an arbitrator. Anyone may hold themselves out as an arbitrator.
There are no requirements to be an arbitrator. Anyone may hold themselves out as an arbitrator.
Which of the following, if any, most accurately describes the Supreme Court’s holding in Gilmer v. Interstate/Johnson Lane?
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Because arbitral institutions owe a fiduciary duty to the parties and the courts under the FAA, courts are required to delegate decision-making power to them.
Arbitration agreements for employees can never be enforced under the FAA without some proof of equal bargaining power.
Arbitrators must write the reasons for their arbitration awards in language easy enough for the lay person to understand.
Arbitration provisions are presumptively valid contracts just like other contracts, and will not be invalidated based on generalized concerns about arbitration or arbitrators.
Arbitration provisions are presumptively valid contracts just like other contracts, and will not be invalidated based on generalized concerns about arbitration or arbitrators.
A court is more likely to refuse the enforcement of an arbitration agreement when:
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The scope of the agreement includes statutory claims.
The arbitration agreement sets up a proceeding that limits statutory remedies that would otherwise be available in court to the weaker non-drafting party.
The party refusing the enforcement of the arbitration agreement argues that the larger contract was fraudulently induced.
The arbitration agreement is placed in an obscure part of a larger contract.
The arbitration agreement sets up a proceeding that limits statutory remedies that would otherwise be available in court to the weaker non-drafting party.
Which of the following are grounds under the FAA to reverse an arbitration award?
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The arbitrator exceeded the scope of her authority under the agreement to arbitrate.
The arbitrator was mistaken about the law.
The arbitrator was mistaken about the facts and exceeded the scope of her authority under the agreement to arbitrate.
The arbitrator was mistaken about both the law and the facts of the case.
The arbitrator was mistaken about the facts in the case.
The arbitrator exceeded the scope of her authority under the agreement to arbitrate.
Which of the following are non-statutory grounds for vacating an award:
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The arbitrator knew what the clearly controlling law was, deliberately disregarded it, and contradicted it in the award.
Manifest disregard of the law such as a clear misunderstanding of the relevant law.
An unreasoned award.
Due process violations and public policy.
The arbitrator knew what the clearly controlling law was, deliberately disregarded it, and contradicted it in the award.
In which of the following circumstances is a provision in an arbitration agreement least likely to be enforced?
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An arbitration agreement limits discovery to one deposition and one request for production of documents per party.
An arbitration agreement is imposed on purchasers of a company’s products on a take-it-or-leave-it basis.
A credit card company includes an arbitration provision in every cardholder agreement.
An arbitration agreement requires that a consumer initiating arbitration against a company pay a non-refundable fee of $5,000 to initiate arbitration.
An arbitration agreement prohibits class action arbitration.
An arbitration agreement requires that a consumer initiating arbitration against a company pay a non-refundable fee of $5,000 to initiate arbitration.
Which of the following, if any, most accurately describes the Second Circuit’s holding in Sobel v. Hertz, Warner & Co.?
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The FAA does not require arbitrators to disclose the reasoning underlying their awards.
A misconstruction of the law by an arbitrator is a clear manifest disregard of the law and consequently a ground for vacatur.
When resolving statutory claims, arbitrators must always explain their reasoning in order to avoid triggering a ground for annulment.
Courts always have the possibility of reviewing statutory interpretations by the arbitrators.
The FAA does not require arbitrators to disclose the reasoning underlying their awards.
The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards:
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Is an international treaty that seeks to overcome judicial hostility to international arbitration of commercial disputes.
Should not prevail if it conflicts with the Federal Arbitration Act because the Convention is not U.S. law.
Has been ratified only by Western nations.
Has a list of limited grounds for the annulment and refusal of enforcement of foreign arbitral awards.
Is an international treaty that seeks to overcome judicial hostility to international arbitration of commercial disputes.
You may want to use a value claiming approach in a negotiation when:
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You are most comfortable with this approach.
You want to explore options.
You dislike your negotiating counterpart.
The outcome matters more than your relationship with your negotiating counterpart.
The outcome matters more than your relationship with your negotiating counterpart.
You are representing a client in an employment discrimination case. The company is willing to negotiate a settlement. Which of the following are objective criteria that you could use to determine how much they should pay your client?
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Salaries for employees with similar job descriptions and qualifications.
What your client wanted to be paid, the salaries for employees with similar job descriptions and qualifications, and what the company has paid in the past to settle similar claims.
What your client wanted to be paid when they started the job.
Both the salaries for employees with similar job descriptions and qualifications and what the company has paid in the past to settle similar claims.
How much the company has paid to settle similar claims in the past.
Both the salaries for employees with similar job descriptions and qualifications and what the company has paid in the past to settle similar claims.
In the Singer negotiation that you did during class, the ZOPA would:
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be the opposite of the bargaining range.
vary based on the first offer.
be between $0 and $45,000
be between $25,000 and $45,000
be between $0 and $45,000
You are a new prosecutor. Your boss was recently elected as a “reforming DA” with campaign promises to “stop mass incarceration.” Your boss handed you a pile of cases and said, “Use your judgment to settle these cases. You can’t dismiss any cases without my approval, or reduce the charges without my approval. Otherwise you can exercise your discretion and settle these cases in any way you think is fair. Remember, I didn’t get elected to just sentence people to prison but I expect most of these cases to settle and to settle as quickly as possible so we aren’t wasting court time.” You walked into the courtroom and see that the public defender assigned to the court is someone you know from law school. You took a negotiation class together. From your experience, the public defender has a highly collaborating style of negotiation. Mindful of your boss’s instructions, will you:
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Tell the public defender that you do not have any offers on any cases so that they will be more open to your offers at the next court date.
Tell the public defender what you are offering on each of your cases and be open to making a different offer if the public defender makes a reasonable counter-offer.
Tell the public defender that it is a “take-it-or-leave it” offer, so you will not negotiate a different offer and you won’t waste time talking about each case over and over again.
Tell the public defender that your offer is “good today only” so you can get as many cases as possible settled today.
Tell the public defender what you are offering on each of your cases and be open to making a different offer if the public defender makes a reasonable counter-offer.
A neighborhood developer wants to build a 450-unit, 4-story apartment building in a residential neighborhood. The local neighborhood association is opposed to the development due to a concern that it will bring more traffic to the neighborhood, more transient student renters (due to the nearby university) and more noise, and will decrease their property values. The developer wants to build an apartment complex large enough to justify their investment.
What is the best description of the positions of the developer and the neighborhood association?
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The developer wants a 450-unit building and the neighborhood association doesn’t want increased traffic.
The developer wants to make a profit and the neighborhood association wants their neighborhood to continue to be a peaceful, stable, family friendly neighborhood.
The developer wants a 450-unit building and the neighborhood association doesn’t want an apartment building built.
The developer wants a 450-unit building and the neighborhood association doesn’t want their property values to decrease.
The developer wants a 450-unit building and the neighborhood association doesn’t want an apartment building built.
A neighborhood developer wants to build a 450-unit, 4-story apartment building in a residential neighborhood. The local neighborhood association is opposed to the development due to a concern that it will bring more traffic to the neighborhood, more transient student renters (due to the nearby university) and more noise, and will decrease their property values. The developer wants to build an apartment complex large enough to justify their investment.
What is the best description of the interests of the developer and the neighborhood association?
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The developer wants to make a profit and the neighborhood association wants their neighborhood to continue to be a peaceful, stable, family friendly neighborhood.
The developer wants a 450-unit building and the neighborhood association doesn’t want an apartment building built.
The developer wants a 450-unit building and the neighborhood association doesn’t want increased traffic.
The developer wants a 450-unit building and the neighborhood association doesn’t want their property values to decrease.
The developer wants to make a profit and the neighborhood association wants their neighborhood to continue to be a peaceful, stable, family friendly neighborhood.
Recall the Golden Years simulation. Imagine that you are the mediator, and you are trying to be as facilitative (or elicitive) as possible, based on the continuum of mediator practices from facilitative (or elicitive) to evaluative (or directive). Which of the following would be the most facilitative (or elicitive) intervention?
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During caucus, you tell Green Acres’ director that a jury is unlikely to find for Green Acres on Sally’s personal injury claim.
In caucus, you ask Sally Soprano what she would most like to accomplish through the mediation.
During caucus, you tell Sally’s attorney, “I respect your legal analysis and zealous representation of your client. But if I were you, I’d be worried about your client’s attack on Susan Gross.”
In joint session, in an effort to facilitate both parties’ willingness to work with each other, you recommend a settlement figure.
In a joint session, you say to the parties, “You’ve found ways to accommodate Sally’s and Green Acres’ needs in terms of the nursing home’s operations, and you have closed the gap from your initial offers that were $100,000 apart to offers that are now $10,000 apart. You’ve accomplished a lot. Why don’t you bridge the remaining gap by splitting the difference?”
In caucus, you ask Sally Soprano what she would most like to accomplish through the mediation.
According to Riskin, a mediator with a “broad” agenda:
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Is willing to keep his/her calendar open so that the mediation might play out over several days.
Is open to playing a number of roles, including facilitator, case evaluator, and arbitrator.
Encourages the parties to consider a wide range of issues and options to settle a dispute.
Is accustomed to mediating cases with multiple parties.
Is willing to consider a wide range of dollar amounts to settle a dispute.
Encourages the parties to consider a wide range of issues and options to settle a dispute.
Which of the following is never a characteristic of mediation?
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Direct party participation.
A binding decision by the neutral.
A binding agreement at the conclusion of the process.
Assisted negotiation.
A binding decision by the neutral.
In mediation, a caucus is:
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A meeting between a party and his or her attorney.
A joint session that the mediator calls in order to talk about the mediation process itself, rather than about the issues in dispute.
A pre-mediation telephone conversation with the lawyers, to establish the date, time, and location of the mediation session.
A meeting between the mediator and just one side in the mediation.
A meeting between the mediator and just one side in the mediation.
Which of the following statements is true?
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It is not clear that lawyers are needed or useful in mediation because the law is irrelevant.
Lawyers do not need to do any legal research or discovery prior to a mediation.
When lawyers accompany their clients to mediation, the clients should not speak and should instead allow their lawyers speak on their behalf.
Lawyers should prepare their clients for mediation.
Lawyers should prepare their clients for mediation.
Communications that occur in mediation:
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Are confidential, but in general they will be inadmissible at trial only if a statute or rule provides for a mediation privilege.
Are confidential, which means they are protected by the mediation privilege and can never be admissible at trial.
Are confidential and thus cannot be divulged by the mediator or the parties to anyone, ever.
Are confidential, but a judge will always exercise unfettered discretion in deciding whether they will be admissible at trial.
Are confidential, but in general they will be inadmissible at trial only if a statute or rule provides for a mediation privilege.
When lawyers serve as mediators:
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The Model Rules of Professional Conduct provide that a lawyer-mediator must explain to an unrepresented party the difference between the role of a lawyer and the role of a mediator, when that party does not understand the role the lawyer is playing in the mediation.
They essentially take on legal representation of both parties in the mediation.
The Model Rules of Professional Conduct do not apply because mediation is an alternative dispute resolution process, and the lawyer is not serving in a representational role.
They are always ethically required to explain to unrepresented parties the difference between the role of lawyer and the role of mediator.
The Model Rules of Professional Conduct provide that a lawyer-mediator must explain to an unrepresented party the difference between the role of a lawyer and the role of a mediator, when that party does not understand the role the lawyer is playing in the mediation.
Which of the following is most accurate?
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Courts rely upon the provisions of the Federal Arbitration Act to enforce tiered clauses that provide for mediation and then, if the parties fail to settle, arbitration.
Courts are more likely to enforce mediation clauses if mediation is described as a “condition precedent” to initiating an adjudicative process such as arbitration or litigation, the clause specifies a time limit within which mediation must occur, and the clause specifies the consequences of failing to undertake mediation.
Courts rely upon a national policy favoring amicable settlement to enforce mediation and tiered dispute resolution clauses.
Courts rarely enforce mediation clauses in contracts because they view such clauses as “unenforceable agreements to agree.”
Courts are more likely to enforce mediation clauses if mediation is described as a “condition precedent” to initiating an adjudicative process such as arbitration or litigation, the clause specifies a time limit within which mediation must occur, and the clause specifies the consequences of failing to undertake mediation.
Which of the following statements accurately describe the findings of empirical research regarding negotiation?
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Race and gender affect both the initial and final offers made by automobile salespersons to potential customers.
The seller’s race (if known) affects the number of offers and amounts finally paid for goods in online sales.
Same-race parties negotiate more cooperatively with each other than with intercultural negotiators.
All of these statements are accurate.
All of these statements are accurate.
The courts began to institutionalize mediation in the 1980s and at that time, some commentators objected that mediation’s flexibility and informality permitted and could even exacerbate inequalities. Today:
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Mediators have an ethical obligation to ensure that mediated settlement agreements are not unconscionable.
Empirical research regarding mediation suffers from methodological weaknesses and produces mixed and contradictory results on the existence and scope of biases, but this empirical research also indicates that racial and ethnic minority claimants consistently tend to prefer mediation to adjudication.
None of the answers represents an accurate statement.
The courts regularly report on parties’ perceptions and the outcomes of mediations – as well as negotiations, judicial settlement conferences, dispositive motions and civil trials - in order to ensure that there are no systemic patterns of injustice or discrimination.
We have empirical research demonstrating that these commentators’ concerns were misplaced.
Empirical research regarding mediation suffers from methodological weaknesses and produces mixed and contradictory results on the existence and scope of biases, but this empirical research also indicates that racial and ethnic minority claimants consistently tend to prefer mediation to adjudication.
Lawyers who practice Collaborative Law:
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Are not really practicing law.
Are engaging in an unethical unbundled practice.
Are ethically limited to practicing in the area of family law.
Are required to disclose the disadvantages of the practice to their clients, especially to ensure their clients’ informed consent to the withdrawal provision.
Are required to disclose the disadvantages of the practice to their clients, especially to ensure their clients’ informed consent to the withdrawal provision.
In The Clause simulation, you were involved in dispute system design – i.e., designing a system for the management and resolution of regularly-occurring disputes. Lawyers can assist their clients in designing such systems – e.g., for internal employment disputes, disputes with customers, etc. Based on your experience and dispute system design principles, which of the following are important in designing a system that is reasonably fair and effective?
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- Including representatives of all stakeholder groups in the design of the system.
- All are important.
- Training people in how to use the system.
- Regularly evaluating the system in order to determine whether it is achieving its goals – and then making necessary adjustments.
- Including “fair results” as a goal of the system.
All are important.
