Quiz 1 (Chs 1 & 2)

Question 1

Arbitration

Answer 1

Most traditional form of private dispute resolution; can be administered by private orgs. or non-administered (managed solely by the parties); can be entered into by agrmt or prescribed in pre-dispute clauses in an underlying agreement. Arbitration can take many forms…

Question 2

Binding Arbitration

Answer 2

Private adversarial process with a neutral third party (or 3 neutrals) to render a final decision or award. Process is less formal than lit. in that parties can craft own procedures and decide if any formal ev. rules will apply. If there is no fraud or other defect, the award or decision is enforceable by the court not subj. to appellate review.

Question 3

Non-Binding Arbitration

Answer 3

Same as binding expect the neutral’s decision is advisory only - the parties may agree in advance to use said decision as a tool in resolving their dispute thru negotiation or other means.

Question 4

Baseball or “Final Offer” Arb.

Answer 4

used increasingly in commercial disputes. Each party submits a proposed monetary award to arbitrator. At the conclusion of the hearing, the arb. picks one award without modification - giving each party incentive to offer a reasonable proposal.

Question 5

“Bounded” or “High-Low” Arb.

Answer 5

parties agree privateley without informing the arb. that the arb.’s final award will be adjusted to a bounded range. if the award selected exceeds the range, it is lowered to maximum. If it is within the range, the parties are bound by that figure.

Question 6

Fact-Finding

Answer 6

A process by which the facts relevant to a controversy are determined. Is a component of other ADR procedures and can take a # of forms: Neutral FF: parties appoint a neutral 3rdparty to perform the function and typically determine in advance whether the results of the fact-finding will be conclusive or advisory only.
Expert FF: parties privately employ neutrals to render expert opinions that are conclusive or non-binding on technical, scientific or legal questions. In the latter, a former judge is often employed.
Joint FF: parties designate representatives to work together to develop responses to factual questions.

Question 7

Mediation

Answer 7

A voluntary &informal process in which the disputing parties select a neutral 3rdparty to assist them in reaching a negotiated settlement. Parties can employ mediation as a result of a K provision by private agreement made when disputes arise, or as part of a court-annexed program that diverts cases to mediation. Unlike a judge or arbitrator, a mediator has NO power to impose a solution on the parties. Rather, mediators ASSIST parties in shaping solutions to meet their interests and objectives

Question 8

Mediation is sometimes referred to as. . .

Answer 8

Facilitation, to structure participation in the med. process. Those who take facilitative approach may not suggest settlement terms and will encourage parties to generate their own. Or conciliation, in the international arena.

Question 9

Two ends of Mediator Spectrum

Answer 9

Facilitators and evaluators. Evaluators will propose settlement options and try to persuade parties to make concessions.

Question 10

Med-Arb

Answer 10

parties agree to mediate with the understanding that any issues not settled through the mediation will be resolved by arb. asking the same med. to act both as med. and arb. However, that choice may have a chilling effect on full participation in the mediation portion. A party might not believe that the arbitrator will be able to discount unfavorable information learned in mediation when making the arbitration decision.

Question 11

Multi-Step ADR

Answer 11

Parties may agree (either at time of dispute or in previous agrmt) to engage in a progressive series of dispute res. procedures. 1 step is typically some form of negot., preferably face-2-face. If unsuccessful, a 2nd tier of neg. between higher levels of execs may resolve the matter. The 3rd step may be mediation or another facilitated settlement effort. If no res. has been reached yet, there may be a binding res. - thru arb, private adjudication, or litigation.

Question 12

Wise Man Procedure in Multi-Step ADR

Answer 12

typically used when problems arise in long-term partnerships such as those in the oil and gas industry (could also be useful in the high-technology field and other areas involving close and continuing business relationships). This procedure refers matters 1st to a partnership committee which oversees the day-to-day operations of the project. If the problem cannot be resolved at that level, the wise-man option — the next ADR step — is employed. In that step, wise men (or women), who are respected senior executives of each company who are uninvolved in the project, are given a fairly short time frame (sometimes just 30 days) to investigate the dispute. If that fails, the matter goes to a 3rd step, usually binding arbitration.

Question 13

Negotiated Rule-Making

Answer 13

AKA Reg-Neg, an alternative to traditional approach of US govt agencies to issue regs after a lengthy notice and comment period. agency officials and affected private parties meet under the guidance of a neutral facilitator to engage in joint negotiation and drafting of the rule. The public is then asked to comment on the resulting, proposed rule. By encouraging participation by interested stakeholders, the process makes use of private parties’ perspectives and expertise, and can help avoid subsequent litigation over the resulting rule.

Question 14

Ombudsperson

Answer 14

An organizational dispute res. tool. The ombudsperson is appointed by an institution to investigate complaints within the institution and either prevent disputes or facilitate their resolution. The ombud. may use various ADR mechanisms like fact-finding or mediation in the process of resolving disputes brought to her attention.

Question 15

Partnering

Answer 15

Typically used as a dispute-prevention method for large construction projects, this method is capable of being transposed in other settings, particularly in joint ventures. Before the work starts, parties to the project generally assemble for a several-day retreat away from their organizations. With the help of a third-party neutral, they get to know each other, discuss some of the likely rough spots in the project and even settle on a process to resolve misunderstandings and disputes as the project progresses.

Question 16

Pre-Dispute ADR K Clauses

Answer 16

A clause included in the parties’ business K to specify a method for resolving disputes that may arise. It may refer to 1 or more ADR techniques, even naming the 3rd party that will serve as an arb.or med. in the case. Pre-dispute Ks requiring arbitration of consumer disputes, or entered into as a condition of employment, have generated substantial backlash b/c some argue the clauses are adhesion Ks.

Question 17

2-Track Approach

Answer 17

Involves use of ADR processes or traditional settlement negotiations in conjunction with litigation. Representatives of the disputing parties who are NOT involved in the lit. are used to conduct the settlement negs or ADR procedure. The neg or ADR efforts may proceed concurrently with lit. or during an agreed-upon cessation of lit. Particularly useful when it may not be feasible to abandon lit. while the parties explore settlement possibilities; or the specter of litigation must be present for the opposing party to consider or agree to an alt. mechanism. It also is useful when the lit. has become acrimonious or when a suggestion of settlement would be construed as a sign of weakness.

Question 18

Court ADR Processes: Court-Annexed Mediation

Answer 18

A court mediation program may be based in the court, or may involve referral by the court to outside ADR programs run by bar associations, nonprofit groups, other local courts, or private ADR providers. Some courts require litigants to use mediation in what are known as mandatory mediation programs. The purpose of the mediation session is unchanged whether litigants enter the program voluntarily, or by court mandate. The court mediator may be a lawyer trained in mediation and compensated by the parties, or serve as a volunteer. Judges, magistrate judges, or court ADR professionals also serve as mediators in some court programs

Question 19

Ct ADR Processes: Early Neutral Evaluation (ENE)

Answer 19

Like mediation, ENE is applicable to many types of civil cases, including complex disputes. In ENE, a neutral evaluator — a private atty expert in the substance of the dispute — holds a several hour confidential session with parties and counsel early in the lit. to hear both sides. Afterwards, the evaluator identifies strengths and weaknesses of the parties’ positions, flags areas of agreement and disputes, and issues a NON-binding assessment of the merits of the case. …
Originally designed to make both case mgmt and settlement more efficient, ENE has evolved into a pure settlement device in some courts. Used this way, ENE resembles evaluative mediation, in which the mediator uses case evaluation as a settlement tool.

Question 20

Ct ADR Processes: Ct-Annexed Arb.

Answer 20

An adjudicatory dispute res. process in which 1 or more arbitrators issue a NON-binding judgment on the merits, after an expedited, adversarial hearing. The arbr’s decision addresses only the disputed legal issues and applies legal standards. Either party may reject the non-binding ruling and proceed to trial.
Court-annexed arb is used mainly in small- and moderate-sized tort and contract cases when lit. costs are often disproportionate to the amts at stake. … ]t has lost popularity in recent years. Most court ADR development focuses on mediation.

Question 21

Ct ADR Processes:Summary Jury Trial

Answer 21

a non-binding ADR process used to promote settlement in ready cases headed for protracted jury trials. Usually, a judge or magistrate judge presides over the SJT; occasionally, a neutral attorney conducts the process. Part or all of a complex dispute may be submitted to a summary jury trial. After an abbreviated hearing in which counsel presents ev. in summary form, the jury renders a verdict. NON-binding, it becomes the basis for subsequent settlement negs. If the parties do not reach a settlement, the case proceeds to trial. B/C they are costly, SJTs are used relatively rarely. Typically, the SJT is reserved for large cases when settlement efforts have failed and litigants differ significantly about jury outcome.

Question 22

Ct ADR Processes: Judge-Hosted Settlement Conferences

Answer 22

The most common form of ADR used in federal and state courts is the settlement conference presided over by a judge or magistrate judge. Almost all of the 94 federal district courts use judicial settlement conferences routinely, and now, 1/3 of the courts assign this role almost exclusively to magistrate judges.
The classic role of the settlement judge is to articulate judgments about the merits of the case and to facilitate the trading of settlement offers. Some settlement judges and magistrate judges also use mediation techniques and the settlement conference to improve comm. among the parties, probe barriers to settlement, and assist in formulating resolutions. In some courts, a special judge or magistrate judge is designated as settlement judge. In others, the assigned judge (or another judicial officer who will not hear the case) hosts settlement conferences at various points during the lit, often directly before trial.

Question 23

Ct ADR Processes: Court Minitrial

Answer 23

a flexible, non-binding settlement process primarily used out of ct. Like the summary jury trial the ct minitrial is a relatively elaborate ADR method generally reserved for large disputes. Each side presents a shortened form of its best case to settlement-authorized client representatives — usually senior executives. The hearing is informal, with no witnesses and a relaxation of the rules of evidence and procedure. A judge, magistrate judge or non-judicial neutral presides over the 1- or 2-day hearing. Following the hearing, the client representatives meet, with or without the neutral advisor, to neg. a settlement. At the parties’ request, the neutral advisor may assist the settlement discussions by acting as a facilitator or by issuing an advisory opinion. If the talks fail, the parties proceed to trial.

Question 24

Ct ADR Processes: Multidoor Courthouse or Multi-Option ADR

Answer 24

term describes courts that offer an array of dispute resolution options or screen cases and then channel them to particular ADR methods. Some multidoor courthouses refer all cases of certain types to particular ADR programs, while others offer litigants a menu of options in each case. Multidoor courthouses have been established in state courts in New Jersey, Texas, Massachusetts, and the District of Columbia. On the federal level, courts in the Western District of Missouri, the Northern District of California, the District of Rhode Island, and others now have multi-option ADR.

Question 25

Ct ADR Processes: Settlement Week

Answer 25

In a typical settlement week, a court suspends normal trial activity and, aided by bar groups and volunteer lawyers, devotes itself to the mediation of long-pending civil cases. Mediation is the mainstay ADR method in a typical settlement week. …

Question 26

Ct ADR Processes: Private Judging

Answer 26

Private judging is a general term used to describe a private or court-related process in which disputing parties empower a private individual to hear and decide their case. The procedure may be exclusively a matter of contract between the parties or may be undertaken in connection with an authorizing statute. When authorized by statute, the process is sometimes referred to by the colloquial term, “Rent-a-Judge.”