Alternative Dispute Resolutions Flashcards
Chapter 16
What are alternative dispute resolutions?
Group of privately organized practices that offer alternative to adjudication
Traditional lawsuits have become expensive, and emotionally taxing giving reliance on legal formalities and elite decision making
What are the forms of ADR?
- Negotiation
- Mediation
- Arbitration (ADR.org)
- Private Judging
- Neutral Fact Finding and Ombudspersons
- Early Neutral Evaluation
- Mini-trials
- Summary Jury Trials
What are the questions to ask when determining other resolutions to adjudication?
1.Who presides over the dispute?
2.What is the source of the standard for resolution?
3.Who speaks for the disputants?
4.What is the nature and extent of fact finding and norm creation?
5.Who decides the dispute?
6.What remedies are available, awarded, and enforced?
7.What is the binding efffect of any resolution?
8.Who pays for the decision-making process?
9.Who can access the process and its decisional results?
What is negotiation?
Parties talking with eachother to try to find a resolution to possibly negotiate a settlement early on
Can occur at any part of trial
What is mediation?
Judge may order parties to go through mediation to show where parties stand; mediator will ask for submissions beforehand to understand the facts
This is a neutral third party (retired judge or experienced attorney) that comes in, hears both sides seperately, and will give an honest assessment
Parties have a say in the settlement; costs split;
Can help bring sides together
What is arbitration?
Formalized form of mediation (mini trial without federal/state rules)
Parties agree to arbitration rules-whatever arbitration decides, it is binding (Essentially a contractual agreement that parties agree to)
Parties can bring witnesses but usually not a long discovery period
Decision = arbitration award
Decision is taken and filed within civil courthouse
What is private judging?
Hiring a private judge where parties do not want to deal with delays (usually called a bench trial)
Faster and simplified manner; only people with big pockets can use this as it is very expensive)
Used in California but is criticized for creating a two-tiered justice system
What is Neutral Fact Finding and Ombudsperson?
Third party investigation to figure out what is going on (internal issues within corporations or schools)
Asks how we can resolve the issue
What is an Early Neutral Evaluation?
This is court mandated early on to require parties to meet with someone to assess their case and see where parties stand
Factual and legal presentation to a neutral party
This happens after a filed lawsuit but before a lot of litigation; Used for alot of family law cases
What are mini-trials?
Mini-trials occur during litigation to show any strength/weaknesses to stimulate settlements
There is limited discovery (confidential)
Neutral advisor (attorney or retired judge) where settlement negotiations occur to determine if this case continues or stops
What are Summary Jury Trials?
These trials are not binding but occur right before jury trial
Lawyers present their case to a panel of 6 jurors (picked from the general population) where the jury gives a verdict (advisory)
This provides a basis for settlement
What is Fed R. Civ. Pro 16?
Pretrial conference that gives court broad discretion to proceed past pre-trial
Can mandate mediation
What is Ruel 54(a)?
Judgments- how judgment can be entered and how others have binding effect
What is Rule 54(d)?
Special masters orders
What is Rule 68?
A party can put forward an offer of judgment at least 14 days before trial date
Defendant (generally) may serve to offer judgment on specified terms- opposing party can accept and the file
The Party who does not agree, and then plaintiff gets judgment for less than what defendant offered- plaintiff has to pay costs
