New Developments in Dispute Resolution Flashcards
Ethics Rule 1.1
shall provide competent representation
Ethics Rule 1.2
abide by a client’s decisions concerning the objectives of representation; a lawyer shall abide by a client’s decision whether to settle a matter
Ethics Rule 2.1
when a matter involves litigation, you are required to advise your client of alternative routes
Ethics Rule 2.4
when the lawyer serving as a third party neutral realizes that a party doesn’t realize that they are neutral (bc they are an arbitrator or mediator), they have to explain the difference between the lawyer’s role as a third-party neutral and a lawyer’s role as one who represents a client
Med-arb
Beginning with mediation and turning to arbitration if there is no settlement
Med-arb advantages
Guaranteed settlement
Can take less time
Can choose a neutral with relative expertise
Med-arb disadvantages
If the same person serves as mediator and arbitrator, the person may have learned something in caucus that a party would not have revealed in joint session (in arbitration all evidence has to be disclosed in front of everyone)
Also, parties may not disclose things in mediation that they would not want an arbitrator to know
tiered dispute resolution clause
contractual provision that outlines a step-by-step process for resolving disputes between parties, typically starting with informal negotiations and escalating to more formal methods like mediation or arbitration only if earlier attempts fail
Enforcement of mediation and tiered dispute resolution clauses
Courts are not as willing to enforce a clause that provides for consensual dispute resolution (think its futile, if one person has already started litigation, then the consensual dispute resolution probs won’t work)
making the mediation and tiered dispute resolution clause more likely to be enforced
- define the consensual process as a “condition precedent”
- reduce ambiguity
- define length of time for completion
- define the mechanism for initiating
- define the rules
- define how much of the process must be undertaken
- define carve outs
- outline consequences for failure to comply
Collaborative Law
Key principles: Client is agreeing that the lawyer is only going to represent the client to the extent that the client is working to resolve the case on a consensual basis with the other side; If the client stops and withdraws to regular litigation, the lawyer will withdraw and the client has to get a new lawyer
is consistent with a lawyer’s duty of loyalty
This is relevant to family law and expanding to business partnerships, private partners (anywhere there is a relationship that the parties want to preserve)
Fits at the consensual end of the ADR range
Online dispute resolution
Lots of growth in the private area (Ebay)
Also growth in the family area (divorce, child custody, post-divorce communication)
Public use
- Courts – traffic violations, small claims, family matters, debt collection
- Municipalities agencies – tax assessment appeals
Ombuds
Someone who is there to provide you info, will do investigation, and essentially an internal problem solver
not adjudicative or adversarial at all, more akin to a counselor/advocate
Different models of ombuds
▫ Classical (executive and legislative)
▫ Organizational
▫ Advocate
Many roles/all-purpose
▫ Auditor/safety valve/whistleblower
▫ Counselor, investigator
▫ Advocate, mediator
first stage of online dispute resolution
a session where they get to ask questions and get answers to see if they have a valid legal claim or defenses
Rise of and responses to “mass arbitration”
Consumers and employees historically have not taken advantage of arbitrations of arbitration clause they have signed, but now they will have hundreds of consumers go to the same lawyer, and the lawyer will file hundreds of arbitration claims at the same time (ex. Of moves and counter moves)
Dispute system design
A lot of organizations will have a tiered dispute resolution process (you have to fill out a bunch of surveys until you reach the arbitration point)
Also happens in courts (they may make you try to negotiate before you go to trial)
types of procedures that are adjudicative; third party making a decision
-Litigation/jury trial, bench trial
* Arbitration (binding)
* Private trial
* Private tribunal
types of procedures that are evaluative; third party providing an evaluation
- Early neutral evaluation
- Non-binding arbitration
- Summary jury trial
type of procedures that are facilitative; third party facilitating discussion
- Mini-trial
- Ombuds
- Conciliation
- Mediation
dispute resolution processes focused on interest
prevented process; negotiated process
dispute resolution systems focused on rights
Facilitated processes; Fact finding processes; Advisory processes (rights)
Imposed processes (rights)
Key Principles for Dispute System Design
Determine whether alternative dispute resolution processes are appropriate
**Identify system goals
**Develop a system that is fair and just
Provide multiple process options for parties, including
rights-based and interest-based processes
**Provide substantial stakeholder involvement in the
system’s design
**Provide for system transparency and accountability
through evaluation and reporting
Educate and train stakeholders
Which of the following statements accurately describe the findings of empirical research regarding negotiation?
All of these statements are accurate.
The seller’s race (if known) affects the number of offers and amounts finally paid for goods in online sales.
Race and gender affect both the initial and final offers made by automobile salespersons to potential customers.
Same-race parties negotiate more cooperatively with each other than with intercultural negotiators.
Lawyers who practice Collaborative Law:
Are required to disclose the disadvantages of the practice to their clients, especially to ensure their clients’ informed consent to the withdrawal provision.
In The Clause simulation, you were involved in dispute system design – i.e., designing a system for the management and resolution of regularly-occurring disputes. Lawyers can assist their clients in designing such systems – e.g., for internal employment disputes, disputes with customers, etc. Based on your experience and dispute system design principles, which of the following are important in designing a system that is reasonably fair and effective?
All are important.
Including “fair results” as a goal of the system.
Training people in how to use the system.
Including representatives of all stakeholder groups in the design of the system.
Regularly evaluating the system in order to determine whether it is achieving its goals – and then making necessary adjustments.
MB America v. Alaska Pacific
This opinion addresses the issue of whether a pre-litigation mediation provision in the parties’ contract constitutes an enforceable condition precedent to litigation. They hold that it does and that because MB America, Inc. (MBA) did not initiate mediation as required under its agreement with Alaska Pacific Leasing Company, the district court correctly granted Alaska Pacific’s motion for summary judgment
benefit of pre-litigation dispute resolution clauses
if successful, they facilitate settlement between the franchisor and franchisee before litigation is filed or before it is pursued to completion. This saves all parties costs, time, and risk, such as with discovery disputes, depositions, expert witness costs, and disruptions in the lives of the parties, all of which are often part of litigation.
Parties seeking to enforce mediation clauses have used various procedural tools to try to stop litigation initiated by the other party
motion to dismiss for lack of subject matter jurisdiction; motion to dismiss for failure to state a claim; motion for summary judgment; and motion for stay of proceedings.
Issues on pre-arbitration procedural requirements
pre-arbitration procedural requirements are required to be submitted to arbitrators as opposed to the courts.
