Chapter 4: Courts and Alternative Dispute Resolution Flashcards
alternative dispute resolution (ADR)
the resolution of disputes in ways other than those involved in the traditional judicial process. Negotiation, mediation, and arbitration are forms of ADR.
arbitration
the settling of a dispute by submitting it to a disinterested third party (other than a court), who renders a decision. The decision may or may not be legally binding.
arbitration clause
a clause in a contract that provides that, in the event of a dispute, the parties will submit the dispute to arbitration rather than litigate the dispute in court.
award
in the context of litigation, the amount of money awarded to a plaintiff in a civil lawsuit as damages. In the context of arbitration, the arbitrator’s decision.
bankruptcy courts
a federal court of limited jurisdiction that handles only bankruptcy proceedings.
concurrent jurisdiction
jurisdiction that exists when two different courts have the power to hear a case.
diversity of citizenship
a basis for federal court jurisdiction over a lawsuit between:
1. citizens of different states
2. a foreign country and citizens of a state or of different states
3. citizens of a state and citizens or subjects of a foreign country.
The amount in controversy must be more than $75,000 before a federal court can take jurisdiction in such cases.
early neutral case evaluation
form of ADR in which a neutral third party evaluates the strengths and weakness of the disputing parties’ positions. The evaluator’s opinion forms the basis for negotiating a settlement.
exclusive jurisdiction
jurisdiction that exists when a case can only be heard only in a particular court or type of court.
federal question
a question that pertains to the US Constitution, acts of Congress, or treaties. A federal question provides a basis for federal jurisdiction.
in personam jurisdiction
court jurisdiction over the “person” involved in a legal action; personal jurisdiction
in rem jurisdiction
court jurisdiction over a defendant’s property
judicial review
the process by which courts decide on the constitutionality of legislative enactments and actions of the executive branch.
jurisdiction
the authority of a court to hear a case and decide a specific action
litigation
the process of resolving a dispute through the court system.
long arm statute
a state statute that permits a state to obtain personal jurisdiction over nonresident defendants. A defendant must have “minimum contacts” with that state for the statute to apply.
mediation
a method of settling disputes outside of court by using the services of a neutral third party, called a mediator. The mediator acts as a communicating agent between the parties and suggests ways in which the parties can resolve their dispute.
mini-trial
a private proceeding in which each party to a dispute argues its position before the other side. A neutral third party may be present and act as an adviser if the parties fail to reach an agreement.
negotiation
in regard to dispute settlement, a process in which parties attempt to settle their dispute without going to court, with or without attorneys to represent them. In regard to negotiable instruments, the transfer of an instrument in such a way that the transferee (the person to whom the instrument is transferred) becomes a holder.
online dispute resolution (ODR)
the resolution of disputes with the assistance of organizations that offer dispute resolution services via the Internet
probate courts
a state court of limited jurisdiction that conducts proceedings relating to the settlment of a deceased person’s estate.
Question of fact
In a lawsuit, an issue involving factual dispute. A question of fact can be decided by a judge or jury.
Question of law
in a lawsuit, an issue involving the application or interpretation of a law. Only a judge, and not a jury, can decide a question of law.
rule of four
a rule of the USSC under which the Court will not issue a writ of certiorari unless at least four justices agree to do so.
small claims courts
special courts in which parties may litigate small claims (usually, claims involving $2,500 or less) Attorneys are not required in small claims courts and in many states are not allowed to represent the parties.
standing to sue
the requirement that an individual must have a sufficient stake in a controversy before he or she can bring a lawsuit. The plaintiff must demonstrate that he or she has been either injured or threated with injury.
summary jury trials
a method of settling disputes in which a trial is held, but the jury’s verdict is not binding. The verdict acts only as a guide to both sides in reaching an agreement during the mandatory negotiations that follow.
venue
the geographical district in which an action is tried and from which the jury is selected.
writ of certiorari
a writ from a higher court asking the lower court for the record of a case.