Chapter 5 Flashcards
As a general rule, how many lawsuits settle prior to the completion of the litigation process?
95%
conflict
exists whenever persons have 2 or more points of view on 1 or more issue
when does a conflict turn into a dispute
when one party makes a claim the other denies
negotiation
Persuade or coerce someone to do what you want them to do
Consensual bargaining process in which parties attempt to reach agreement on the dispute at matter
MOST POPULAR MEANS OF DISPUTE RESOLUTION
Negotiation styles
avoid
compete
compromise
accomodate
collaborate
collaboration
win-win in a negotiation
compromise
lose-lose in a negotation
types of negotations
positional & principled
positional negotiation
begins competitively in an attempt to close the gap of a monetary agreement
give and take
distributive bargaining
principled negotiation
looks beyond simple positions to focus more on long term o the situation and relationships among parties
what is the outcome of a good negotiation
both parties walk away bearably unhappy - Nobody feels victorious, no one feels like a loser
level playing field, and can work with each other in the future
types of dispute resolution systems
trial and appeal - most expensive in time, cost and emotions
focus groups
arbitration
mediation
negotiated settlement - least expensive in time, cost and emotions
reasons for settlement without litigation
lower costs
personal reasons
- compromise
- dislike of trouble
- opinions of others
business reasons
- bad for publicity, reputation
arbitration
Resolving disputes common in business scenarios- Favored by court systems
3rd party makes the final decision
Capacity of flexible adjudicatory process in mandatory public context and private voluntary setting
is arbitration binding?
typically yes, it allows the arbitrator to act like a hudge and impose a decision upon you
mandatory arbitration
legally binding agreement to resolve disputes with an arbitrator instead of a court
voluntary arbitration
process where two parties agree to have a neutral third party resolve a dispute
reasons for arbitration
quick & inexpensive resolution
ease court dockets
expert assistance
revent trend towards arbitration to avoid litigation process
who are arbitrators
specialized in the industry, expert 3rd party to make for a more legitimate decision
typically retired judges
3 matters for arbitration
question of:
- fact
- law
- fact and law
how many arbitrators on a case?
1-3
can arbitration be used as a prelude?
NO - If you don’t like outcome of litigation, you can’t go to arbitration
arbitration awards
- binding?
- filed with who?
yes, binding
filed with court clerk and enforced by court
what are the only ground for which an arbitration award can be overturned?
if arbitrator acted fraudulently or innapropriately
Federal Arbitration Act (FAA)
law that makes arbitration agreements enforceable in the United States
mandated arbitration
states have been adopting recently bc it speeds up the process
cases below x dollar amt and reserved for specific subject matters
steps of mandatory arbitration
submit claim
discovery
arbitration determines
- admissibility of evidence
- law/facts of case
- objections
Hearing
process takes 8 months
how do parties agree to voluntary arbitration?
Pre-dispute arbitration clause
- pursue arbitration if dispute arises
Post-dispute arbitration clause
- while in litigation, move to arbitration
voluntary/contract baded judicial review of arbitration
Award final
Findings of fact/law - conclusive
Limited review by court
Statutorily mandated judicial review of arbitration
In accord with procedural/due process of law
Constitutional challenges
De Novo Review
what could deter outcome of arbitration during judicial review?
fraud
corruption
misconduct
exceeding of powers
who are mediators
3rd party experts in law
mediation
3rd party assists in resolving dispute and avoid litigation
ST structured task oriented participatory intervention process
Parties shape their own resolution collectively
settlement through mediation
mutual choice through help of a mediator
mediator never imposes decision
perks to mediation
can be more creative with an outcome and address the more grey areas when it comes to the decision
keeps costs down
easy to retain relationships with other parties
disadvantages of mediation
no enforcement
selection of mediator - qualifications
mediation - responsiblities under mediator, parties
agreement style
mediator
- opening statement and rules
parties
- view statement
- exchange
- discuss options
agrement
- written/signed
process of mediation
diffusal of emotions
- identify and narrow issues in dispute
- explore mutually beneficial outcomes
discovery
- get a sense of both sides
find right mediator
other alternatives to dispute resolution
mock trial
minitrial (confidential)
minitrial
private, voluntary, and non-binding alternative to going to court
Focus on central issues
Back to business problem
5 ways to resolve disputes
negotiation
ajudication
mediation
arbitration
hybrids/spinoffs
ajudication
Traditional response to dispute between parties for one lawyer to to file a complaint in the judicial system
Neutral judge has power to control process and the solution
Lengthy and time consuming
Damages relationships
