Terms Flashcards
collaborative law
lawyers and clients agree to negotiate from the outset of the case using a problem-solving negotiation
- between evaluative and facilitative
mutual withdrawal agreement
disqualified both lawyers from continuing to represent their clients in the process if either party chooses to discontinue CL and proceed in litigation
partnering
another form of cooperative lawyering that was developed and is used in the construction industry on large construction projects
online dispute resolution
can look very different - some are full fledged pre litigation dispute systems and some are just interactive questionnaires
Model Rule of Professional Conduct 1.1 competence
a lawyer shall provide competent representation to a client. competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation
Model Rule of Professional Conduct 1.2 scope of representation and allocation of authority between client and lawyer
- 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
Model Rule of Professional Conduct 2.1 - Advisor
- a lawyer may need to offer a client advice to represent them
- if it is likely to involve litigation, it might be necessary to inform client of forms of dispute resolution that might constitute reasonable alternatives to litigation
Model Rule of Professional conduct 2.4 - lawyer serving as a third party neutral
- when a lawyer is an arbitrator or mediator
- when a lawyer knows or reasonably should know that a party doesn’t understand the lawyer’s role in the matter, the lawyer should explain the difference between the lawyers role as a third party and their role as someone who represents the client
Model Rule of Professional Conduct Rule 4.1 - truthfulness in statements
ombud
someone who helps resolve conflicts and concerns
different ombud models
- organizational
- classical
- advocate
roles of an ombud
- auditor/safety valve/ whistleblower
- counselor, investigator
- advocate, mediator
consequences of the FAA
- you can get a motion to compel arbitration
- you can obtain a stay of litigation if the contract breaker sues
- judicial presumption in favor of enforcement
- court can vacate or confirm an award
- judicial review of arbitral award is limited
when can arbitral agreements be revoked? - section 2 FAA
arbitration agreements shall be valid, irrevocable and enforceable unless you can revoke it under contract law
when can you revoke things under contract law?
unconscionability, fraud, mistake, lack of capacity, duress
procedural unconscionability
- oppression through unequal bargaining positions
- surprise through hidden terms common in adhesion
substantive unconscionability
harsh or one-sided results that shock the conscience
- lack of mutuality
- cost of arbitration
- forum selection clause
- confidentiality provision
