Survey Flashcards
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Individual characteristics theories of conflict
Needs theory (maslow), modern identity theory
dimensions of conflict
- emotional: fear, sadness, bitterness, anger, or hopelessness towards someone indicates a conflict
- cognitive: belief one’s interests are incompatible with another’s
- behavioral: actions taken to express thoughts or feelings of conflict
Resolution can be based on:
Power: who has more power in the conflict?
Rights: what does the law recognize?
Interests: what are parties’ underlying concerns?
social processes theories
Build on individual characteristics theories, emphasizes relationship between parties. Conflict is result of competition for resources
social structure theories
emphasize institutionalized structures organizing society, power and disparities. Marxism, critical theory
life cycle of a dispute
perceived injurious event, initiation of lawsuit or dispute resolution process.
dispute tree
Consensual processes
Parties decide the outcome. Negotiation and mediation, conciliation. may focus on positions or interests.
Adjudicatory processes
Third party neutral decides the outcome. Arbitration, trial, private tribunals.
Tend to focus on positions, seen as win/lose.
Position v interest
Position is what the parties say they want, interests motivate positions.
Mediation-arbitration
parties attempt to mediate, go to arbitration if they cannot. advantage: guaranteed outcome. disadvantage: same neutral serves as both mediator and arbitrator, meaning confidential info may influence arbitration, or parties would be less willing to disclose info in mediation.
Arbitration-mediation
Arbitrator makes decision which is private from parties while they mediate. If they reach an agreement, decision stays private, if they do not, decision is disclosed and binding.
Issue: arbitrator may guide parties to the decision he made.
mini trial
lawyers present abbreviated cases to a panel of executives and a neutral who then make a decision.
Summary jury trial
like a mini trial but before a jury with no authority or binding power.
early neutral evaluation
neutral identifies the issues and provides an early eval, may predict outcome
fact finding
neutral makes findings on contested issues of fact, like property value
ombuds
official who receives and handles complaints and disputes within an institution, usually in long term care situations.
Lawyers roles in dispute processing
may represent parties, counsel clients, serve as neutrals
Three types of arbitration and their governing law
- Labor management: between employers and unions- gov by NLRA
- Commercial arbitrations, between businesses, customer and business, employers and non-union employes. gov by FAA + state law
- international arbitration: UN + NY convention
Arbitration process
Trial-like: parties submit dispute to a neutral third party. Can binding or nonbinding. Not regulated, but formalized by AAA and other orgs.
Federal Arbitration Act (FAA) Section 2
Arbitration clauses within a larger contract are considered to be its own contract, presumed valid. Subject to contract defenses
Defenses to arbitration clauses
- Fraud: uncommon because the larger contract being fraudulent does not make arbitration clause fraudulent. Provision itself must be fraudulently induced.
- Unconscionability: procedural (hidden clause) or substantive (too one sided, overly harsh or unfair).
These defenses have very high standards.
FAA section 10
Courts do not review merits of an award. Power to vacate award is limited. Grounds for vacatur: corruption, fraud, partiality, arbitrator misconduct, arbitrators that exceed their power.
Non-statutory grounds for vacatur.
- Manifest disregard: arbitrator knows clearly controlling law and disregards it.
- public policy: must be clearly defined and controlling.
- others: arbitrary and capricious, irrationality
Sobel v. Hertz
Trial ct judge tried to force arbitrator to provide reasoning for the award to determine if it was manifest disregard. Appellate ct: judges cannot force reasoning, doing so would negate arbitration’s purpose.
Punitive damages
Arbitrators routinely award them, even when not expressly authorized.
Mastrobuono v. Shearson lehman hutton: allowed punitive damages despite NY law prohibition bc the agreement didn’t preclude punitive damages.
Essence test
Labor arbitration awards must draw its essence from the collective bargaining agreement
Elements in arbitration clauses
- consent
- scope of dispute
- institution and rules
- seat of arbitration
- language
- method of appointment
- choice of law
Negotiation skills
- assertiveness
- empathy
- flexibility
- social intuition
- ethically
Negotiation objective criteria
Independent external standards to compare offers to. based on consistency principle. ex: past salaries/settlements
negotiation styles
Avoiding, compromising, accommodating, competing, collaborating
BATNA
Best alternative to a negotiated agreement. (1) invent list of actions you may take if no agreement is reached, (2) improving some ideas and converting them to practical alternatives, (3) selecting the alternative that seems the best.
Measure against any offer to ensure you don’t take a bad deal.
Types of no in negotiation
- tactical no: turn down offer to generate a better one,
- no to re-set: moving away from the table with intent to continue later
- final no: ends negotiation
negotiator’s delimma
negotiators must both claim/distribute value while also trying to create new value. Involves competition and cooperation.
Reservation point, aspiration point, ZOPA
maximum amount a buyer will pay for a good, minimum amount a seller would accept for the item. When buyer’s RP is higher than the seller’s, the distance is the bargaining zone or ZOPA. Aspiration point is best deal that can possibly be made.
value creating
emphasizes collaboration to meet parties interests, especially outside of monetary solutions.
creative problem solving:
1. identify underlying needs and objectives
2. crafting solutions that attempt to meet needs directly and by expanding resources
mixed value claiming/creating approaches
Competitive problem solvers: strive to claim more distributive items, but look for areas of joint gain. If you create more value, you can claim more value. WIN-win.
May involve subtle deception: exaggerate concessions and minimize interests
NY convention
International treaty that seeks to overcome judicial hostility to international arbitration of commercial disputes. Presumes arbitration agreement is valid
-annulment of arbitral award is governed by law of seat of arbitration, NOT NY convention
Mediation
- Third party aids negotiation, facilitates conversation to help parties reach a voluntary agreement.
- mediation comes in huge variety of forms
- any participants can greatly influence procedures and outcomes.
Narrow v. Broad mediator
How mediator defines problems.
Narrow: focus on technical problems defined in parties positions.
Broad: Go beyond narrow issues to help parties understand and meet underlying interests.
Evaluative v. facilitative mediator
The role a mediator plays.
evaluative: provides direction based on law, practice or tech.
facilitative: assumes role is to enhance and clarify communication between parties, not give her own opinion
Subject matter expertise in mediation
importance increases when parties seek evaluations from the mediator on a specific issue
Stages of mediation
- agreeing to mediate
- understanding the problem
- generating options
- reaching agreement
- closing mediation
- implementing agreement
Confidentiality and TEXAS mediation privilege
Model Standards of Conduct for Mediation: information shall be confidential unless otherwise agreed to or required by law.
Texas has mediation privilege. Does not permit the discussions inside of mediation to be brought into court.
Collaborative Law
Contemporary approach to negotiation focusing on problem-solving, real needs and interest. Largely pioneered in family law. Disqualification provision: if either party withdraws from CL, lawyers are disqualified from representation
Issues: encourages parties to settle, which may pressure clients to settle inappropriately.
five basic skills of negotiation
empathy, social intuition, assertiveness, flexibility, ethicality
How to help court enforce a consensual dispute resolution clause
Define time for completion
Define mechanism to initiate dispute resolution
Define rules
Define how process is undertaken
Define carveouts
Define consequences for failure to comply
Make as unambiguous as possible
Principles of dispute system design
Are ADR processes appropriate?
Fairness and Justice
Multiple process options (right and interest based)
Substantial stakeholder involvement
Provide system transparency
Educate and train stakeholders
Motivations for ADR movement?
- saves time and money
- “better” system
- “better” result
- enhance community involvement
- broadens access to justice
- protect turf or self, institution, or profession
