Module 2: ADR Flashcards
Mediation
Negotiation moderated by a third party who may make suggestions but not impose a solution
Arbitrator
A third party to a negotiation who considers the evidence and issues a decision
Arbitration
Private substitute for a trial, in which an arbitrator issues a decision on the dispute
CA judges usually order arbitration for cases w/ claims
$50,000
shuttle diplomacy
Mediator talks to each hostile party one-on-one
T/F: The California Association of REALTORS® residential purchase agreement form requires buyers and sellers to try mediation before filing suit or using arbitration
True
T/F: If only one party initials the arbitration clause, it is not binding on the other party
True
If either party brings an action in state court despite initialing the arbitration clause, the other party may bring a motion to ____ the dispute to be resolved in arbitration.
compel
T/F: The mediation clause does not have to be initialed by both parties to take effect
True
If any party fails to attempt to resolve a dispute prior to filing a court action, that party is not entitled to recover ______ fees per the _____ fees provision of the purchase agreement even if that party prevails in the action
attorney’s
T/F: Many times, the attorney’s fees incurred is as much or even more than the damages suffered by the party:
True
Can lawyer’s attend the mediation w/ their clients?
Yes
T/F: Mediation results are automatically legally binding
False
When are mediation results binding?
When the parties put the results into a binding contract
T/F: If no solution is reached through mediation, the injured party may still take the case to court or arbitration
True
Who pays for mediation fees?
Both parties split the cost
Y/N: Is a non-binding arbitration reviewable by the Courts?
Yes
Alternative Dispute Resolution (ADR)
methods of solving a problem by bringing in an impartial outsider but not using the court system
If no arbitration clause is in a contract, the parties can still go to arbitration by executing a _____ Agreement
Submission
An arbitrator’s decision is called a(n) ____
award
When a mediator meets with one of the parties to get them to focus on their interests and needs, it is called a ____
caucus
For mediating COMPLEX legal disputes, the fees of an experienced professional mediator are similar to arbitrators’ fees, often costing several hundred dollars (or more) per hour, plus ____ fees
administrative
An arbitrator is usually a retired ____ or ____ w/ experience in the subject matter of the case
Judge or lawyer
How do parties present evidence during arbitration?
They take turns
Is a court reporter present in mediation or arbitration?
Arbitration
Who pays arbitration fees
Both parties split the cost
Is involuntary arbitration binding?
No
Involuntary arbitration
any arbitration required by statute or court order
___ arbitration can be appealed in a court of law
Involuntary
What type of arbitration is usually required by a contract?
Mandatory / Voluntary
What type of arbitration is usually binding?
Mandatory / Voluntary
T/F: If a purchase agreement or brokerage agreement requires the parties to use arbitration, the contract must state this requirement explicitly
True
If a purchase agreement or brokerage agreement requires the parties to use arbitration, the mandatory arbitration provision must be in bold or ___ type, with language set forth in California Code of Civil Procedure § ____.
red; 1298
Who must initial the arbitration provision of a brokerage or purchase agreement for it to be enforceable
Both parties
When can the result of a mandatory arbitration be challenged in court?
1) if the arbitrator’s decision was the result of fraud, corruption, or similar misconduct or
2) if the arbitrator exceeded her powers; or
3) refused to hear relevant evidence
What must the dissatisfied party in an arbitration prove
the arbitrator’s misconduct actually affected the arbitration award
Courts ___ find the arbitrator’s misconduct affected the arbitration award
a) usually
b) rarely
rarely
Why are large damages awards less likely in arbitration?
Arbitrators tend to be less emotional than juries
3 reasons why businesses like arbitration
1) speed
2) certainty
3) arbitrators are less emotional than juries
