Ch 5 Flashcards
Dispute
Arises when 1 party makes a claim that another party
Denies
Conflict
Exists when there are 2 or more points of view
Exists in any relationship people have, good or bad
Negotiation
Process used to persuade or coerce someone to do
What you want them to do
Positional bargaining AKA Positional negotiation
What does positional bargaining not focus on?
Parties state respective expectations and negotiate to
Middle ground
Positional bargaining does not focus on underlying conflicts
(like product quality)
Principled, interest-based negotiations: 7 elements
1 communication 2 relationship 3 interests 4 options 5 legitimacy 6 alternatives 7 commitment
Principled, interest-based negotiations: communication
Sharing nature of dissatisfaction with specifics
or difficulties of running operations
Having each party listen to others concers
Principled, interest-based negotiations: relationship
Each party can discuss benefits from continuing their
Relationship
Discuss maintaining or enhancing relationship
Principled, interest-based negotiations: interests
Each party communicates real interests to each other
Principled, interest-based negotiations: options
Each party brainstorms options of solutions to dispute
Principled, interest-based negotiations: legitimacy
Involves demonstrating to other party that you actually
intend to do what you said
Principled, interest-based negotiations: alternatives
Outcomes possible without agreement of other party
Things parties can do away from the negotiation table
Parties should understand the alternatives during
negotiation
Principled, interest-based negotiations: commitment
Any successful negotiation must conclude with the parties
Making realistic commitments that can be put into practice
ADR systems, 3 popular ADR systems?
Alternative dispute resolution systems
1 settlement
2 mediation
3 arbitration
Settlements, why businesses usually settle in suits against customers
Avoiding litigation
Not good business from public relations standpoint
Juries favor customers, b/c businesses have more resources
To pay
Focus groups
Used in significant cases
Attorneys assemble group of citizens and present their
evidence. This group deliberates and makes findings
Gives attorneys insight into how the jury will find verdict
In trial
Arbitration, why is it used?
Disputing parties agree to have 3rd party decide Merits
Of dispute
Private proceeding with no public record available to
The press
Used to avoid various litigation expenses, solve disputes
Quicker, preserve business relationship (since private)
Arbitrator
Decision maker (disinterested in financial impact of decision) And neutral regarding issues of dispute
Arbitrator takes place of jury and judge by making
Decision
Submission
Process of beginning arbitration proceeding
Voluntary arbitration
When both parties in dispute agree to use arbitration
Mandatory arbitration
Statute or court requires parties to arbitrate
Award
Written (in most states) decision of arbitrator’s decision
States which party us to pay other sum of money
How are arbitrators usually chosen, what are 2 other ways they can be chosen?
Usually chosen by disputing parties
1 chosen by provision in agreement to arbitrated
2 statute requiring arbitration
Arbitration: expertise
Arbitration is a preferred method to resolving a dispute
Because has expert on matter solve dispute
Ex. Medical, real estate, academic, appraiser
Number of arbitrators used is based on…
Agreement of parties
Usually 1 or 3 arbitrators
Federal Arbitration Act (FAA)
Encourages businesses to use arbitration instead of
litigation
EEOC
Equal employment opportunity commission
State laws can’t prevent arbitration of disputes if the parties are…
Engaged in or impact interstate commerce
2 forms of voluntary arbitration
1 predispute arbitration clause
2 post dispute arbitration agreement
Voluntary arbitrate: predispute arbitration clause
Commonly appear in business contracts
Contracting parties understand that conflicts and disputes
may occur and if they arise should be arbitrated
Voluntary arbitration: postdispute arbitration agreement
Arise when parties already in dispute decide arbitration
Is better than litigation
Judicial review: voluntary arbitration award
Statutorily mandated arbitration award
Awards from arbitration are often final
Not usually made void in judicial review
Higher level of judicial review for statutorily mandated
Arbitration aware
De novo judicial review
Occurs when dissatisfied party rejects arbitrators award
Means court tries issue anew as if no arbitration occurred
What is required in mandatory arbitrations? 2) what is necessary to have enough judicial review to satisfy due process?
Record of proceedings
2) findings of fact and conclusions of law are essential
If there is enough judicial review to satisfy due process
Federal Arbitration Act
Provides guidelines where an arbitration award can be
vacated
For reasons having to do with misconduct of arbitrators
Mediation, what can mediators not impose?
ADR Process where third person called mediator attempts
To assist disputing parties in resolving their differences
Negotiation
Mediators can’t impose binding solution on the parties
What does mediation often allow?
Allows disputing parties to reestablish relationships
3 reasons mediations have gained in popularity?
1 disputing parties retain control over when to settle and
when to continue disputing
2 cheaper than arbitration
3 reduction in legal system governing the process
6 typical steps in mediation process
1 mediators intro and explanation of mediation 2 parties' opening statements 3 parties exchange/negotiation 4 brainstorm solutions 5 agreement written and signed 6 private sessions or caucuses (optional At mediator's discretion)
Caucus
Private meeting with mediator
Judicial review and mediation
Mediation is not subject to judicial review
Med-Arb
Parties resolve all matters using mediation and agree
To arbitrate unresolved matters
