slaydr personal Flashcards
1
Q
What does ADR stand for?
A
Alternative Dispute Resolution
ADR encompasses various methods for resolving disputes outside traditional court settings.
2
Q
Name the (6ish) types of ADR (that we covered in the course).
A
- Negotiation
- Mediation
- Arbitration
- Online Dispute Resolution
- Collaborative Law
- Ombuds
Each type has unique characteristics and processes.
3
Q
What is the main difference between arbitration and mediation?
A
In arbitration, a 3rd party decides the outcome; in mediation, parties decide their outcome with the help of a mediator.
Arbitration is more formal and tends to be binding, while mediation is collaborative and informal.
4
Q
Define ‘conflict’.
A
Actual or perceived clash of interests or aspirations.
Conflict can lead to disputes when acted upon.
5
Q
What is a dispute?
A
A manifestation of underlying conflict that has been acted upon.
Disputes arise from sources of conflict.
6
Q
What are the three theoretical underpinnings of conflict?
A
- Individual Characteristics Theories
- Social Process Theories
- Social Structure Theories
Each theory provides a different perspective on the origins and nature of conflict.
7
Q
Individual Characteristics Theories
A
Needs Theory: conflict arises from unmet human needs
Modern Identity Theory: conflict arises from threat to individual and social identity, sense of worth
8
Q
Social Process Theories
A
Emphasizes relationships between parties. Conflict arises from competition for resources.
9
Q
Social Structure Theories
A
Conflict arises from nature of social system and its disparities of power/influence (Marx, Critical Theory).
10
Q
True or False: Conflict always has negative consequences.
A
False.
Conflict can also lead to positive outcomes, such as social change, and can also manifest in a variety of other ways like unhealthy competition, inefficiency, and low morale.
11
Q
Mayer’s Analytical Approaches to Conflict (3)
A
Cognitive, Emotional, Behavioral
12
Q
What does Mayer’s Cognitive Approach to Conflict focus on?
A
Perceptions and beliefs about a conflict.
Cognitive resolution aims to address how disputants perceive their incompatibilities.
13
Q
What is the focus of Mayer’s Emotional Approach to conflict?
A
The emotional reactions of parties involved in the conflict.
Emotional resolution looks at how feelings impact the conflict.
14
Q
What is the focus of Mayer’s Behavioral Approach to conflict?
A
Conflict as the actions we take to express ourselves, get needs met, interfere with others’ attempts to get their needs met.
Resolution: Extent to which disputants have discontinued conflict behavior –> instituted actions to promote resolution
15
Q
List the bases for resolution in conflict.
A
- Power (who has more)
- Rights (what does the law say)
- Interests (parties’ underlying concerns)
These bases influence how conflicts are resolved and the strategies used.
16
Q
What is the life cycle of a dispute?
A
- Perceived Injurious Event.
- Escalation / stabliziation
This event represents a divergence in interests or desires between parties. Escalation leads to an increase in resource investment.
17
Q
Dispute Resolution Continuum
A
Extent of Third Party Control over Outcome
* Adjudicative Processes
* Consensual Processes (evaluative + facilitative focus)
* Negotiation
Adj: Binding arb, priv. trial, admin adj.
Eval: Non-binding arb, summJ trial, ENE, eval/directive med
Facilitative: facil/elicitive med, mini-trial
18
Q
What are ADR’s motives? (6)
A
- Saving time and money
- Reducing burden on the legal system
- Using flexible processes
- Achieving better outcomes
- Enhancing community involvement in DR process
- Broadening access to justice
Motives can also include self-interest protection (protect turf for self, an institution, or a profession)
19
Q
Fill in the blank: A _______ is what someone says they want or are entitled to have.
A
[Position].
Positions are often stated in disputes.
20
Q
Fill in the blank: An _______ is the need or motive underlying a position.
A
[Interest].
Understanding interests can lead to more effective resolution strategies.
21
Q
What is adjudication?
A
A process where a 3rd party imposes a solution upon disputants.
Adjudication is typically formal and results in a win/lose outcome.
Includes arb, private trials
22
Q
What is the key characteristic of arbitration?
A
A neutral decisionmaker decides the issues.
Arbitration is less formal than litigation but binding. Used a lot in industrial labor relations and commercial/consumer disputes. Arbr can be SM expert, customize procceedings.
23
Q
What are the three types of arbitration?
A
- Employers – Unions (Natl Labor Rels. Act)
- Commercial Arbitration (FAA + forced arb)
- International Arbitration (UN + NY Con)
Each type is governed by different laws and frameworks.
24
Q
What is a Private Tribunal?
A
A jdx approach where a court can refer cases to privately selected and paid 3rd party neutrals (“rent-a-judge”). Decision can be entered as court’s judgment, can be appealed.
Adjudicative Process
Parties voluntarily submit to such tribunals in order to select their own decision maker or in the hope of eliminating delay and gain ability to exclude public
25
What is the role of the FAA in arbitration?
It provides a legal framework for enforcing arbitration agreements.
## Footnote
The Federal Arbitration Act was enacted to ensure arbitration agreements are treated like contracts.
26
True or False: Arbitration decisions can always be appealed.
False.
## Footnote
Arbitration awards are generally final and only subject to limited review.
27
What is the difference between 'mediation' and 'conciliation'?
Mediation involves a neutral 3rd party facilitating discussion; conciliation may not involve a neutral party.
## Footnote
Conciliation is often less formal than mediation. If a employer engages in a prohibited practice, EEOC recommends employer and affected employee meet informally to try to resolve their differences
28
What is med-arb?
Begins as mediation, if agreement not reached, proceed to arbitration (performed by either mediator or another neutral)
29
What is arb-med?
Converts to med after presentation of evidence to arbitrator, who records decision that is withheld to parties while they attempt to mediate. If no settlement, the decision is disclosed and is binding.
30
What is a 'mini-trial'?
A process designed to resolve complex business disputes through abbreviated presentations to decision-making execs from both orgs and a neutral advisor.
## Footnote
Mini-trials aim to facilitate settlement discussions. AKA Structured Settlement Negotiation
31
What is a Summary Jury Trial?
Mini-trial but for jury cases. Same pool as real jurors, nonbinding verdict helps them understand how a jury would hold.
32
What is Early Neutral Evaluation (ENE)?
A neutral IDs issues on which parties are disputing, evaluates both sides' cases, can predict outcome and damages. (Med + nonbinding arb)
## Footnote
Seeks to reduce pretrial costs and delay.
33
What is fact-finding?
Neutral makes findings on contested issues of fact. Can aid in neg/med/arb.
34
What is the function of an ombuds?
To receive complaints and facilitate resolutions within an institution.
## Footnote
Ombuds can investigate and recommend solutions.
35
What is commercial arbitration?
Based on contract (pre or post-dispute), parties shape to process own needs. Normally confidential, some awards published but are nonbinding.
36
What do 'power', 'rights', and 'interests' refer to in conflict resolution?
* Power: Who holds more power
* Rights: What the law recognizes
* Interests: Underlying concerns motivating the conflict
## Footnote
Understanding these elements helps in crafting resolution strategies.
37
Reasons Arb > Litigation
Speed, cost efficiency
Informality
Decisionmaker SM expert
Widely recognized
38
What is 'mixed processes' in ADR?
Processes that combine elements of mediation and arbitration, such as Med-Arb or Arb-Med.
## Footnote
Mixed processes can offer flexibility in resolving disputes.
39
What is the "ouster doctrine"?
Old common law doctrine under which courts refused to enforce agreements to arbitrate. FAA (1925) reversed this.
40
FAA Legal Framework
Arb agreements enforced as long as enforceable as K (2), compel unwilling party to arb (4), stay rel. legal proceedings (3), summon + hear witnesses (7), awards can be entered as court judgment (9, 13), court can modify and correct awards (11), court can vacate awards if arbr misconduct OR exceeded scope of authority (10)
41
FAA Section 2
Arbitration agreements are valid and enforceable like a matter of contract law. To avoid enforcing agreement, must argue contract law (K signed out of coercion, fraud, duress, etc.)
42
What is the purpose of a Motion to Compel Arbitration?
To enforce arbitration agreements as valid contracts.
43
What does Section 2 of the FAA state about arbitration agreements?
Arbitration agreements are valid and enforceable like a matter of contract law.
44
What can an arbitration decision be entered as?
A court decision.
45
True or False: Signing a contract for arbitration waives the 7th Amendment right to a jury trial.
True.
46
What does the phrase 'contract evidencing a transaction involving commerce' imply?
It covers many contracts broadly.
47
What are grounds to escape enforcement of an arbitration agreement under contract law?
Separability Doctrine
* Unconscionability (Procedural and Substantive)
* Duress.
* Fraud
* Mistake
* Incapacity
48
What does Section 10 of the FAA allow courts to do?
Vacate an award due to corruption, partiality, or misconduct by the arbitrator.
49
What was the ruling in Wilko v. Swan (1953)?
OVERTURNED. Arbitration agreements cannot waive the right to a judicial forum under the Securities Act.
50
What was the ruling in Gilmer v. Interstate/Johnson Lane Corp. (1991)?
If the arbitration involves statutory rights, the weaker party must be able to “effectively vindicate” those rights.
51
What is the ruling in Sobel v. Hertz, Warner & Co. (1972)?
Arbitrators do not have to explain the reasoning behind their decisions.
52
Fill in the blank: According to the amended FAA, cases involving sexual harassment or sexual assault cannot be bound to _______.
forced arbitration.
## Footnote
EFASASHA
53
What are defenses to enforcement of arbitration agreements?
* Fraud
* Unconscionability.
High standard to hit.
54
What is Prima Paint's 'Separability Doctrine'?
The arbitration provision is treated as separate and valid even if the larger contract's validity is questioned.
## Footnote
Arbitration provision itself is valid merely by virtue of entering into the larger contract, even if larger K’s validity is in question
55
Define procedural unconscionability.
Demonstrating that the provision is oppressive or includes surprise.
## Footnote
Oppressive: couldn't turn it down
Surprise: obscure placement of provision by party with superior bargaining strength
56
What is substantive unconscionability?
A provision that is one-sided, overly harsh or shocks the conscience.
## Footnote
Too expensive, biased arbr imposed, remedies limited, parties disparately treated
57
What does FAA Section 10 allow courts to do regarding arbitration awards?
Confirm, vacate, or modify awards.
STATUTORY:
* Fraud
* Partialty/Corruption of Arbr
* Arbr misconduct
* Exceeded scope of arbr auth
## Footnote
FAA only allows for limited grounds for review.
58
List the statutory grounds for vacating an award under FAA Section 10. [DEFENSE AGAINST ENFORCEMENT of arb AWARD]
* Corruption, fraud, or undue means (re: issue in arb)
* Evident partiality/corruption in arbrs (active/passive)
* Arbitrators' misconduct (denied fundamentally fair hearing)
* Arbrs exceeding scope of powers (ruled on issue not presented)
## Footnote
NOT WHEN misconstruing contracts or making errors of law or fact, even when the mistake is serious.
59
What are the NON-STATUTORY GROUNDS for Vacating Awards?
* Manifest Disregard
* Contrary to Public Policy
* Arbitrary and capricious award
* Irrationality (no reasonable judge)
* The "Essence" Test
60
What is the 'Essence Test' in arbitration?
An award is legitimate if it draws its essence from the collective bargaining agreement. When the arb's words betray this obligation, court must refuse to enforce the award.
## Footnote
From labor law. wtf does that mean tho
61
When can an arbitration award NOT be vacated? (3ish)
* Errors of fact or law
* Serious misconstruction of the contract
* Misinterpretation of evidence
62
What does FAA Section 11 authorize?
Modification or correction of an award under certain circumstances.
63
Circumstances Under Which an Arb Award can be Modified/Corrected (Section 11)
* Evident material miscalc of figures, mistake in desc. of person/thing/property
* Award not on matter submitted to arb
* Award is imperfect in matter of form
* Promote justice between parties
64
Punitive damages in arbitration
Arbitrators routinely award punitive damages (even when agreement may not expressly authorize them) unless prohibited by state arbitration law.
65
What are the seven key elements of the arbitration agreement?
* Consent
* Scope of the Dispute
* Institution and Rules
* Seat of Arbitration
* Language
* Method of Appointment
* Choice of Law
66
What does the NY Convention of 1958 aim to overcome?
Judicial hostility to international arbitration of commercial disputes.
67
Presumptive Validity (Intl Comm Arb)
Different from domestic arb (which would be governed under FAA, section 2 requires parties to find agreement in K law.) NY CON doesn't provide grounds for agreement annulment: what is "null" "void" or "inoperable" is determined by state law (in the seat of arb).
68
What conditions can lead to the refusal of recognition and enforcement of an award under Article V of the NY Convention?
* Parties were incapacitated
* Lack of proper notice
* Award outside the scope of arbitration agreement
* Procedural issues not compliant with the law.
## Footnote
Incapacitation, improper notive, award outside scope of arb agreement, procedural issues, award not yet binding or suspended
69
Intl Comm Arb Process
Parties conduct proceedings according to the rules they agreed on (ICC, UNCITRAL<--)
Parties must choose seat of arb (that jdx's arb law applies).
70
Define interests vs. positions in negotiation.
Interests are needs and desires; positions are decisions made based on those interests.
71
What is reactive devaluation?
A cognitive bias that occurs when a proposal is devalued because it appears to originate from an antagonist
72
5 Approaches to Conflict
1. Decline to Negotiate
2. Compromise
3. Accommodation
4. Competitive
5. Collaborative
73
What are the two primary approaches to negotiation?
* Integrative/Problem Solving (VALUE CREATION)
* Distributive (VALUE CLAIMING)
74
What is the role of objective criteria in negotiation?
Provides impartiality and legitimacy to negotiation points.
75
What does 'increase the size of the pie' refer to in negotiations?
'Increase the size of the pie' refers to creating new value from opportunities in negotiations.
76
What is the Negotiator’s Dilemma?
The tension that comes with sharing information, worrying about what to reveal and the risk of being taken advantage of.
77
What are Objective Criteria in negotiation?
Actual information that can be gathered to find a negotiation point, lending an aura of impartiality and legitimacy.
78
List potential sources of Objective Criteria (9)
* Market value
* Precedent
* Scientific judgment
* Professional standards
* Efficiency
* Costs
* Possible court decision
* Moral standards
* Tradition
79
What is the 'Consistency principle'?
It makes standards and norms powerful and seen as consistent and rational in decision making.
80
Define 'Zone of Possible Agreement (ZOPA)'.
The range between the reservation point (lowest you’ll go) and the aspiration point (best deal).
81
What does BATNA stand for?
Best Alternative to a Negotiated Agreement.
82
Why is BATNA important?
It is a central source of power; the better the BATNA, the greater the ability to improve the terms of any negotiated agreement.
83
What are the three operations for generating possible BATNAs?
* Inventing a list of actions if no agreement is reached
* Improving promising ideas into practical alternatives
* Tentatively selecting the best alternative
## Footnote
List, improve practical alternatives, tentatively select best alternative
84
Differentiate between Creating Value and Claiming Value.
* Creating Value: Acknowledging shared problems for joint gains.
* Claiming Value: Assuming limited resources to divide.
85
What is a key technique for Creating Value?
Increase the number of issues for bargaining or 'expand the pie' before dividing it.
86
What is the 'WIN-win' approach?
A strategy where there is a big win for one party and a little win for the other.
87
List Allred’s Always Effective Tactics (6)
* Developing and improving BATNA
* Using only best arguments
* Working to see where interests are met
* Treating the other party with respect
* Engaging in collaboration
* Avoiding needless unpleasantness
## Footnote
BATNA, best args, working to see interest intersection, respecting e/o, collaborating, niceness
88
Identify Aristotle's 4 Elements of Persuasion.
* Ethos: Ethics, trust, credibility
* Pathos: Emotional connection
* Logos: Logic
* Kairos: Timing
89
Conflict Management Styles (5)
Assertiveness - Cooperation
(Avoiding, Competing, Collabing, Accommodating, Compromising)
90
What are the Five Basic Skills for Effective Negotiation?
* Assertiveness
* Empathy
* Flexibility
* Social Intuition
* Ethicality
91
What role does the first offer play in negotiations?
It acts as an 'anchor', potentially stopping negotiations at that point.
92
FLINCH!
Erase the anchor if their first offer sucks. Force them to justify "where did you get that number"
## Footnote
AAAAAAA!
93
True or False: Lying in negotiations is strictly prohibited under MRPC.
False.
94
What is mediation?
An impartial third party helps others negotiate to resolve a dispute or plan a transaction.
95
What are the basic stages of 'Classic' Mediation? (5)
* Pre-Mediation Preparation
* Understanding the Problem
* Generating and Assessing Options
* Reaching Agreement
* Closing the Mediation
96
What is the Mediator's role in mediation?
To facilitate communication and negotiation between parties to assist in decision-making.
97
Mediation procedures often include...
* Presentations by the parties or lawyers or both
* Explorations of the parties’ legal claims and underlying interests
* Development of options for resolution
* Evaluation of such options
* Attempts to reach an agreement that settles the dispute and finally, the conflict
98
What is the difference between Evaluative and Facilitative mediation?
Evaluative mediation involves the mediator assessing strengths and weaknesses, while facilitative mediation emphasizes cooperation and party control.
99
What is the difference between Narrow and Broad Orientation?
Narrow oritentation focuses on the legal issues and assumes the parties have a technical problem (who pays who, how much). Broad orientation looks to the underlying interests beneath prositions and thinks helping the parties understand their interests is more important.
100
E-N Mediator
Help parties understand +/- of their positions, likely trial outcome. Study docs + give opinion.
101
F-N Mediator
Help parties understand +/- of their positions, likely trial outcome. Will ask facilitative ?s in private caucuses to get participants to understand both sides' positions.
102
E-B Mediator
Helps parties understand their circumstances and options, emphasizes **interests **and provides solutions based on parties AND OWN understanding. Reads docs, encourages external parties to get invovled.
103
F-B Mediator
Help the parties define, understand and resolve the problems they wish to address, emphasizing sharing underlying interests in joint sessions. Doesn't provide proposals, less emphasis on legal args or docs. Must think on toes.
104
Other Models of Mediation?
* Understanding Based
* Transformative
Neither can have private caucuses. U: want parties to understand e/o.
T: mediators cannot eval, just sit in room. Recognition of respective humanity.
105
What is the purpose of Riskin’s Five Tasks of Mediation?
To guide the mediation process from agreeing to mediate to implementing the agreement.
1. Agreeing to mediate
2. Understanding the problems
3. Generating opinions
4. Reaching agreement
5. Implementing the agreement
106
5 Basic Skills for Effective Negotiation
1. Assertiveness
2. Empathy
3. Flexibility
4. Social Intuition
5. Ethicality
## Footnote
Use all 5 to your benefit
107
What is the purpose of confidentiality in mediation?
To encourage honesty in the mediation process.
108
Mediation Privilege
* Limits court's ability to hear potentially relevant evidence.
* “A mediator shall maintain the confidentiality of all information obtained by the mediator in mediation, unless otherwise agreed to by the parties or required by applicable law.”
* Exception for abuse or harm (mediators are mandatory reporters)
109
What are tiered dispute resolution clauses?
Clauses that outline multi-step processes for resolving disputes before litigation.
110
Nonenforcement of Tiered DR Clauses + Remedies
NONenf: provision ambigious (in process)
Remedies: "condition precedent"
specific clause
carve outs from DR process
consequences from failure to follow process
## Footnote
* Pre-arbitration procedural requirements are required to be submitted to arbitrators as opposed to the courts
111
What is Collaborative Law?
An approach where lawyers and clients agree to negotiate using a problem-solving approach. Withdrawal provision.
## Footnote
From family law.
112
What is a dispute resolution requirement considered in litigation?
A 'condition precedent' to the filing of litigation.
113
What should be included in a dispute resolution clause?
Specificity of the clause.
## Footnote
Time limits, etc.
114
What should be defined in the dispute resolution process to improve the chances it is enforced?
Any carve-outs from the dispute resolution process.
115
What are the consequences for failing to follow the dispute resolution process?
Consequences must be outlined.
116
To whom are pre-arbitration procedural requirements submitted?
To arbitrators as opposed to the courts.
117
What do lawyers and clients agree to in Collaborative Law?
To negotiate using a problem-solving approach.
118
What happens if litigation ensues in Collaborative Law?
The lawyer will no longer represent the client.
119
What type of meetings do Collaborative Law parties primarily engage in?
'Four-way' meetings.
120
What are 'shadow' feelings in Collaborative Law?
Feelings like anger, fear, grief that are accepted but not permitted to direct the process.
121
What does Collaborative Law create for negotiations?
A 'container' around lawyers and clients.
122
What do some argue Collaborative Law avoids?
Mediation’s structural flaws.
123
What is a disadvantage of Collaborative Law?
Disqualification agreement can invite abuse.
124
What is Cooperative Law similar to?
## Footnote
Cooperative Law: parties agree to negotiate cooperatively, but the process is less structured and does not include a disqualification provision in their participation agreements.
Collaborative Law.
125
What is a characteristic of Cooperative Law?
Less structured and does not include a disqualification provision.
126
What is Partnering in the context of Cooperative Law?
A form used in the construction industry to work as a team.
127
What are some private uses of Online Dispute Resolution (ODR)?
eCommerce, apps, family matters.
128
What are some public uses of Online Dispute Resolution (ODR)?
Courts, traffic violations, small claims.
129
What is a common role of an Ombudsman? (3)
Counselor, investigator, advocate.
130
What are the typical phases of an Ombuds process?
* Client counseling
* Negotiation
* Mediation
* Adjudication.
131
What is the goal in designing a Dispute Resolution System?
To determine if alternative dispute resolution processes are appropriate.
132
What should be developed in a Dispute Resolution System?
A fair and just system.
133
What should be provided for parties in a Dispute Resolution System?
Multiple process options.
134
Key principles in Dispute Resolution 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
135
What type of justice involves negotiation of settlement for criminal cases?
Plea Bargaining.
136
What percentage of felony drug cases typically plead out?
94+%.
137
What are therapeutic justice courts focused on?
Treating underlying issues behind criminal activity.
138
What does Restorative Justice involve?
Mediation of criminal cases between victim and offender.
## Footnote
Post-conviction restorative justice happens in order to give the victim a way to get closure and
opportunity to speak.
139
What is important for legal professionals in criminal law?
Good trial and negotiation skills.
