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ADR > Exam deck > Flashcards

Exam deck Flashcards

1
Q

Dispute Resolutions are based on:

A

Power (money/ better lawyers)
Rights (what does the law recognize)
Interests (What are the parties concernes & What is motivating the conflict)

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2
Q

The types of dispute resolution

A
  • Negotiation (w/out lawyers)
  • Negotiation (w/ lawyers)
  • Mediation (facilitated by neutral)
  • Early neutral eval (neutral evaluates rather than facilitates)
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3
Q

More types of dispute res

A

Judicial settlement conf (FRCP 16: A judge can give/ ask about mediation during the pretrial conference and give his evaluation of each party’s case in order to bring the parties to settlement)

  • Summary jury trial (brief hearing in front of jury that reaches an advisory verdict) (Lawyers may ask jurors questions about why they reached their verdict
  • Arbitration [non-binding] (Arb that ends in an award that can be rejected in favor of a trial) (Sometimes, if an award is rejected but the rejecting party does not do better at trial, that party can be made to pay other’s court costs)
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4
Q

Even more res types

A 
Binding Arbitration (just like it sounds)
Admin. adjudication (administrative law courts with ALJs that hear cases between the public and an agency
Private trial (A public judge allows the parties to select a private judge... private judge uses a public courtroom, hears the case, and issues findings of fact etc.)
Public trials (both bench and jury)
Online dr
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5
Q

Motives behind ADR movement

A
  1. Saving time &money
  2. Using “better processes- more open
  3. Achieving “better” results - outcomes that servve the “real needs” of the participants
  4. Enhancing community involvement in dispute res.
  5. Broadening access to justice (if someone can’t afford a good lawyer)
  6. Protecting turf for oneself, an institution, or a profession
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6
Q

Characteristics of arbitration

A
  • . Can be binding or non-binding
  • Not regulated and does not require cert.
  • Based on contract
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7
Q

3 types of arb

A 
Labor management 
         (national labor relations act (NLRA)
Commercial
        (Federal Arb act - FAA)
International
     NY Convention (and FAA)
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8
Q

7 key elements of the arb agreement

A
  • Consent
  • Institution & Rules
  • Scope of the dispute
  • Seat of arbitration (what geographical place the arb happens)
    - choice of law
    - procedural law
    - national court that will aid and annul
  • Language
  • Medhot of appointment, number of arbs, & qualifications
  • Choice of law
    - Contract
    - Arb agreement
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9
Q

Separability doctrine

A
  • Allows vacation of arb award where there was corruption, partiality, or other misconduct by the arb, or where the arb exceeded the scope of his or her authority
  • Any challenge to arb must be brought against the arb provision specifically (not the larger contract)
  • The arb provision is treated as a separate contract
  • Did the party’scontract challenge mention the arb provision specifically?
  • Any challenge to the validity of the agreement as a whole is for the arbitrator to decide
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10
Q

Defenses to enforcement of arb agreements

A
  • State (common) law defenses found in contract law
  • Fraud
  • Duress
  • Mistake
  • Lack of capacity
  • Unconscionability (the contract is so one-sided the court will not enforce it)
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11
Q

Characteristics of unconscionability

A
  • It would be unjust to enforcement the agreement due to imbalance
  • Either procedural or substantive
  • Procedural
    - Oppression through unequal bargaining
    • Surprise hidden in terms
  • Substantive
    - Harsh or one-sided (i.e. cost of arb, confidentiality provision)
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12
Q

Fraud may be shown only by:

A

Clear and convincing evidence-
Materially related to an issue in the arb
Nor have been discoverable by prior due diligence

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13
Q

Non-statutory ground for vacating (an arb award)

A
  • Manifest disregard for the law (award contradicted clearly controlling law)
  • Award is contrary to public policy
  • Award is arbitrary & capricious (given to sudden changed in behavior/mood)
  • Award is irrational
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14
Q

New York Convention

A
  • An intn’l treaty that seeks to overcome judicial hostility to intn’l arb of commercial dispute
  • Establishes presumptive validity (party rejecting enforccement of the agreement has the burden of showing that the arbitral clause is not valid)
  • Annulment of an arbitral award is governed by the law of the seat of the arbitration
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15
Q

Negotiation

A

-No 3rd party… simply bargaining

-

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16
Q

Elements of communication in negotiation

A

Communication is:

  • 7% words
  • 38% voice
  • 55% body language
17
Q

Characteristics of Bargaining

A
  • ZOPA = zone of possible agreement (like $15,000 to $30,000)
  • Reservation point = bottom line (walkaway point)
  • Aspiration point = the best deal that could possibly be made
  • Batna = best alternative to a negotiated agreement
    • This is a central source of power
    • Is the deal that I’m making at leaast as good as my best alternative?
18
Q

Responses to horrendous first offers

A
  • Flinch
  • “Where did you get that number” (make them justify with objective standards)
  • Certain statements in negotiation are not taken as statements of material fact, so lying in negotiation can be advantageous
19
Q

5 basic skills of negotiation

A
  • Assertiveness
  • Empathy
  • Flexibility
  • Social Intuition
  • Ethicality
20
Q

Mediation (assists parties’ communication and negotiation)

A
  • No requirement to be a mediator

- In some states, must complete a credentialled mediation training course to handle referrals from the courts

21
Q

Facilitative mediators vs. evaluative
&
Narrow v. Broad

A
  • Facilitative: draws out the parties. Centers on the parties and getting them to come to agreement themselves.
  • Evaluative: Proposing or suggesting settlements. Centers on the mediator directing the parties
  • Narrow : focuses with the parties on the legal issues
  • Broad: might consider psychological issues; encourage parties to consider social or political issues
22
Q

Basic stages of mediation

A
  • How important is getting a facilitative vs. evaluative
  • Preparing & planning with client
  • Lawyer should explain the process efore the client meets with the mediator
    - Interests at issue; chances at trial, etc.
    Lawyer explains what the case is about and what key issues are
    -Helps the mediators prepare
23
Q
  • Confidentiality (some states like TX have a mediation priv)
A
  • If an oral agreement is reached and then reneged on, the parties cannot testify to the terms of the agreement in court
24
Q

Med-arb (beginning of tiered dispute resolution)

A

try to mediate and if this does not work, then move to arb

advantage: guaranteed outcome
disadvantage: same person serving as mediator and arbitrator means that the mediator may learn secrets in caucus that can influence how the arbitrator will decide
- The parties might not be willing to disclose certain info in mediation

25
Q

Arb- med

A
  • Arb makes a decision, places it in the envelope, and then proceeds to mediation
  • Potential problem is that arb can steer parties to the type of award the he already gave.
26
Q

Court enforcement of dispute res. clauses

A

Courts do not always have the same commitment to enforcing a clause that requires consensual dispute resolution
- Courts are more likely to shy away from enforcement if the clause has ambiguities regarding:
- time for completion
- a mechanism to initiate dispute res.
- the rules
- “carve-outs”
- consequences for failure to comply
-

27
Q

Characteristics of collaborative law

A
  • Lawyer only represents to the extent that client wishes to avoid litigation
  • Lawyer withdraws from representation if client wants to litigate
  • Relevant where there are relationships that need to be preserved
  • Similar to cooperative law, but the lawyer does not auto matically withdraw in cooperative law
28
Q

Online dr

A
  • Limited remedies in the private sector

- More expansive remedies are only availabel through the courts

29
Q

Dispute system design

A
  • Preventative
  • Negotiated
  • Facilitated
  • Fact-finding
  • Advisory
  • Imposed
30
Q

Ombuds (internal problem solvers)

A
  • Many roles / all-purpose
  • Auditor/safety valve/ whistleblower
  • Counselor, investigator
  • Advocate, mediator
  • Used in long term care situations for families to voice concerns
  • Not adjudicative or adversarial at all, more akin to a counselor/advocate

ADR (2 decks)

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