Alternative Dispute Resolution Flashcards
What is the definition of conflict?
Conflict is a disagreement that doesn’t always include fighting. It is any situation where facts, desires, or fears push or pull participants against each other or in divergent directions.
What indicates someone unskilled at handling conflicts?
Bickering, arguing, or getting insistent about one’s view.
Is it always necessary to litigate conflicts?
No, it is not always necessary to litigate and deplete clients’ resources.
What can be a positive aspect of conflict?
It can foster awareness for a problem and lead to positive solutions.
What are some types of conflict?
- Interpersonal
- Intrapersonal
- Intragroup
- Intergroup
What characterizes interpersonal conflict?
Conflict between two individuals due to differences in personalities leading to incompatible choices and opinions.
What is intrapersonal conflict?
Conflict that occurs within oneself, taking place in the mind and being psychological in nature.
What happens in intragroup conflict?
It occurs among individuals in a team due to incompatibilities and misunderstandings.
What is intergroup conflict?
Misunderstandings between different teams within one organization due to varied goals and interests.
What are the main differences between negotiation and litigation?
- Negotiation is voluntary; Litigation is involuntary.
- Negotiation is non-binding; Litigation is binding.
- Negotiation is informal; Litigation follows formal procedures.
What is the role of a negotiator?
To determine if the dispute can be negotiated, assist parties in engagement, prepare the client, and draft agreements.
What is mediation?
A confidential process involving a neutral third party to assist in reaching an agreement on contested issues.
What is the primary difference between mediation and conciliation?
In mediation, the mediator encourages agreement without authority to settle; in conciliation, the conciliator proposes solutions.
What are the steps involved in mediation?
- Pre-mediation
- Mediation
- Side session
- Exploration
- Conclusion
True or False: Mediation is always a suitable process for resolving disputes.
False
What are some reasons mediation does not work?
- One party cannot represent their best interests
- Unwillingness of one party to mediate
- Likelihood of insolvency
What does Rule 41A focus on?
Endorsing or opposing mediation, directing disputes to mediation, and managing the mediation process.
What is the purpose of an arbitration clause?
To define the agreement to arbitrate and specify the powers of the arbitrator.
What is required from disputants in arbitration?
Disputants must agree in writing to arbitrate and define the arbitration process.
What is the role of an arbitrator?
To oversee the arbitration process, set procedural rules, and ensure fairness.
What is the outcome if a claimant is successful in arbitration?
The defendant must pay the claimant’s costs and the costs paid to the arbitrator.
What does a mediator do?
Facilitates an agreed settlement without imposing a solution.
What are the expectations of a mediator according to the Code of Conduct?
- Ensure fair administration of justice
- Maintain confidentiality
- Act impartially and independently
What is the significance of preparation in arbitration?
Preparation is key as witnesses must be prepared and a draft case outline set out.
Fill in the blank: Mediation is a _______ process.
confidential
What do arbitration laws or agreements govern?
They govern the arbitration process between the parties involved.
Arbitration laws establish the framework and rules that dictate how disputes are resolved through arbitration.
What types of evidence do arbitrators review during proceedings?
They review documents, witness statements, expert opinions, and other relevant information.
This evidence is crucial for making an informed decision in the arbitration process.
What is the role of an arbitrator in assessing evidence?
An arbitrator assesses the credibility and reliability of the evidence presented.
This assessment helps determine the relevance of evidence in the final decision.
What does ensuring procedural fairness involve for the arbitrator?
It involves presiding impartially over the process and treating all parties fairly.
Procedural fairness is essential to the integrity of the arbitration process.
What is expected of the Chairperson or Presiding Officer regarding impartiality?
They are expected to be neutral and impartial without any personal interest in the dispute’s outcome.
Impartiality ensures fairness in the Alternative Dispute Resolution (ADR) process.
What responsibilities does the Chairperson have in managing proceedings?
They oversee the proceedings, ensure adherence to rules and timelines, and facilitate documentation submission.
Effective management is key to a smooth ADR process.
How does the Chairperson ensure compliance with rules?
They ensure adherence to applicable rules and procedures, interpreting relevant rules or statutes as necessary.
Compliance with established rules is vital for the legitimacy of the ADR process.
In mediation, what role may the Chairperson take on?
They may actively work to facilitate a settlement and guide parties towards mutually agreeable solutions.
This role is crucial in reaching an amicable resolution.
What does the Chairperson do in arbitration regarding evidence?
They hear evidence, evaluate it, and make decisions including issuing interim rulings.
The evaluation of evidence is central to the arbitration process.
What is the significance of the award or decision issued by the Chairperson in arbitration?
It is a final binding award that can be legally enforced like a court judgment.
This award concludes the arbitration process and resolves the dispute.
What is the Chairperson’s role in maintaining professionalism during ADR?
They ensure the process is conducted professionally, fostering an environment for resolution without delays.
Professionalism is essential for effective dispute resolution.
Why is confidentiality important in ADR processes?
It ensures that sensitive information shared during proceedings remains undisclosed improperly.
Confidentiality is particularly crucial in mediation and arbitration.
