Introduction to Continuum of Dispute Resolution and Arbitration Flashcards
Other names for ADR
Appropriate Dispute Resolution, dispute resolution
Types of dispute resolution
negotiation, mediation, and arbitration
conflict
an actual or perceived clash of interests or aspirations
disputes
arise from conflict. A product of conflict. There does not have to always be conflict to be a dispute.
Individual characteristics relates to
people, entities, and institutions
Needs theory
conflict arises from any one of a number of unmet human needs, ranging from physical needs for food and shelter to psychological needs for love and self-actualization
Modern Identity theory
conflict arises from threats to individual and social identity or a sense of self and self-worth.
Social process theories
build on individual characteristics theories, but emphasize the relationships between parties, particularly along distributional lines. Conflict is a result of the competition for resources.
social structure theories
emphasize the institutionalized structures organizing a society, holding that conflict arises from the nature of the social system itself, particularly as it relates to disparities of power social influence. This theory often finds itself in critical theory, which looks to power imbalances and other disparities between genders, races, and other classes to explain social conflict.
Bernard Mayer, the dynamics of conflict resolution: a practitioner’s guide
Conflict may be viewed as occurring along cognitive (perception), emotional (feeling), and behavioral (action) dimensions
conflict as perception
As a set of perceptions, conflict is a belief or understanding that one’s own needs, interests, wants or values are incompatible with someone else’s. This contains both objective and subjective elements. Conflict exists if at least one person believes it to exist.
conflict as action
Conflict also consists of the actions that we take to express our feelings, articulate our perceptions, and get his or her needs met in a way that has the potential for interfering with someone else’s ability to get our needs met. This may involve a direct attempt to make something happen at someone else’s expense. The purpose is to express the conflict or to get one’s needs met.
a perceived injurious event
disputes begin with some divergence between the interests, aspirations, preference, or desires of two or more parties.
informal resolutions
avoidance, discussion, or negotiation
formal resolution
initiation of a lawsuit
dispute pyramid
more perceived injurious events than there are formalized disputes and even fewer disputes persist into later stages of the process.
dispute tree
Dispute tree: The branches of the tree represent the many different ways in which disputes are resolved, ex litigation. The tree might also include truncated branches for injuries named and blamed but not claimed. Barren branches that represent instances in which injured persons choose to lump it. Branches may bear material remedies or symbolic remedies. Some branches are more accessible than others. New branches may appear.
vanishing trial
the proportion of cases resolved by trial decreased significantly in the second half of the twentieth century
five motives for alternatives to traditional litigation
(i) saving time and money, and possibly rescuing an overloaded judicial system; (ii) using better processes–more open, flexible and responsive to the unique needs of the participants, (iii) achieving better results– outcomes that serve the real needs of the participants or society, (iv) enhancing community involvement in the dispute resolution process, and (v) broadening access to justice, and (sometimes subconscious) is to protect turf for oneself and institution or a profession.
positions
which includes an interest): what someone says she wants or is entitled to have
Adjudication focuses more naturally on positions than interests. Others, such as negotiation and mediation, can focus on positions, interests, or both
court and admin adjudication
Adjudication is the most familiar process to lawyers. Adjudication features a third party with power to impose a solution upon the disputants, such as public trial and appeals in courts. Usually produces a win/lose result. Parties present evidence and arguments through attorneys.
Arbitration
the parties have agreed to submit their dispute to a neutral party who they have selected to make a decision (either binding or non binding). Used extensively in industrial labor relations and in commercial and consumer disputes. Parties can select an arbitrator with the background and experience suitable for dealing with the particular issues in dispute. Tends to be less formal, faster, and less expensive than the judicial process. Factors such as community industry, or workplace norms can establish precedent.
Privat trials
Statutes or rule of court permit a court to refer cases to privately selected and paid third party neutrals (rent-a-judge). The judge’s decision is entered as the judgment of the court. This decision may be appealed. Select your own decision maker or speed up the process.
negotiation
parties seek to resolve a disagreement or plan a transaction through discussion conducted by the parties themselves or through representatives. The purpose of negotiation is to divide a limited resource.
mediation
informal process in which an impartial third party helps the parties resolve a dispute or plan a transaction but does not impose a solution. (Facilitated negotiation). Often the parties enter voluntarily, but many courts have programs that require parties to mediate before proceeding to trial.The result is an agreement uniquely suited to the needs and interests of the parties. Usually expressed via contract.
conciliation
sometimes used interchangeably with mediation Sometimes involve a third party mediator . Less formal consensual process or to a less active role for the neutral
mediation-arbitation
begins as mediation. If the parties do not reach an agreement they proceed to arbitration, which may be performed either by the mediator or by another neutral.
arbitration-mediation
Begins as arbitration. The arbitrator makes and records a decision, which is withheld from the parties while they attempt to mediate the dispute. If the parties reach a settlement, the arbitrator’s decision is not disclosed to the parties. If they do not make a decision, the arbitrator’s award is disclosed to and binding upon the parties.
Mini trial
aka structured settlement negotiation. Refer to specially designed processes to resolve complex business disputes that would otherwise be the subject of protracted litigation. Is costly and cumbersome, and has been less common more recently as mediation and other processes have become more popular.
summary jury trial
an adaptation of mini trial concepts to cases that would be tried before a jury. Lawyers give brief presentations of their cases to a jury that has no authority, but whose members are drawn from the same pool as real jurors. Non Binding verdicts and facilitates settlement.
early neutral evaluation
Seeks to reduce pre-trial costs and delay by requiring the parties to confront the strengths and weaknesses of their cases at an early stage. A neutral identifies issues on which the parties agree and disagree and provides an evaluation of each side’s case.
fact-finding
in this process, a neutral makes findings on contested issues of fact such as the valuation of property. This can aid in negotiation, mediation, or adjudication
ombuds
an official, appointed by a public or private institution, whose job is to receive complaints and either prevent dispute or facilitate their resolution within that institution.
Gilmer v. Interstate/Johnson Lane Corp
FAA does not apply top employment agreements
Compulsory arbitration conflicts w/ statutory purpose of ADEA
You cannot allow employers to contract away from judicial forum because of regulation
court has put aside concern for inequality of bargaining power
when FAA was pass in1925 legislators did no expect it to apply to statutory claims
Wilko v. Swan
SCOTUS refused to enforce a pre-dispute arbitration clause because the right to a judicial forum could not be waived
agreement to arbitration found invalid bc FAA allows arbitration for commercial contract disputes
FAA Section 2
enforcement of arbitration
arbitration agreements will be enforced just like other agreements as long as the agreement is enforceable as a matter of contract law
stay proceedings and compel parties to arbitrate if valid written agreement to arbitrate exists
dispute falls within scope of the agreement
Section 4 FAA
permits a court to compel an unwilling party into arbitration if it is satisfied that there is an enforceable agreement to arbitrate
Section 3 FAA
permits the court to stay any related legal proceedings
Section 9 and 13 FAA
permits an arbitrator to issue an award that subsequently may be entered as a court judgement
Section 7 FAA
permits the arbitrator to summon the witnesses
Section 11 FAA
authorizes a court to modify or correct an award
Section 10 FAA
enforcement of arbitral awards
allows a court to vacate an award where there was corruption, partiality, or other misconduct by the arbitrator or where the arbitrator exceeded the scope of their authority
judicial review of arbitration awards confirm, vacate, and modify awards limited grounds for review
Section 10(a)(2)
evident partiality or corrupting in the arbitrators
active-arbitrator was predisposed in favor or against one of the parties
passive - circumstances surrounding the arbitrator that may give rise to inferences of partiality
Section 10(a)(3)
arbitral due process
