What People Said Flashcards
MB America, Inc. v. Alaska Pacific Leasing Company
Issue: Does a pre-litigation mediation provision in the parties contract constitute as an enforceable condition precedent to litigation?
Holding: Absent a waivers rights so mediation, mediation is an enforceable pre-litigation condition. MBA did not take the required actions to initiate mediation - dismissed the declaratory relief claim and affirmed the summary judgment
Weldon and Kelly (2011) - Why pre-litigation dispute clauses are used
- saves all parties costs, time, and risks
- success rate is 70%
Weldon and Kelly (2011) - challenges of enforcing pre-litigation dispute clauses
- it can be difficult to get the parties to share in mediation because they are scared that the information might be used against them in court
Weldon and Kelly (2011) - Courts interpretation of mediation clauses
courts have become more willing to uphold mediation clauses, but previously some courts viewed mediation clauses as “nothing more than an unenforcible agreement to agree”
Weldon and Kelly (2011) - Examples of non enforcement
- Cumberland & York Distributors v. Coors Brewing Co.: not a specific enough mediation clause so they didn’t have to mediate
- HIM Portland v. Devito Brothers: allowed them to go to court instead of arbitration because mediation did not occur, but the court did not compel mediation
Weldon and Kelly (2011) - Examples of enforcement
- Brosnan v. Dy Cleaning Station
- DeVelk Lincoln Mercury v. Ford Motor Co.
Weldon and Kelly (2011) - Recommendations for building a mediation clause
- call pre-litigation dispute resolution requirement a “condition precedent” to the filing of litigation
- make the clause specific
- define any carve outs from the dispute resolution process
- add consequences for failing to follow process
controversial aspects of collaborative law
- disqualification agreement: can invite abuse and encouragement to settle
ABA’s view on disqualification agreement
a disqualification agreement in collaborative law does not violate ethics rules under the model rules of professional conduct
what does a lawyer have to do before representing someone in a collaborative law process
inform the clients of the benefits and disadvantaged of the process
what did Thomas Friedman say about moving everything online?
a critical mass of our lives and work take place online - we are all connected but nobody is in charge. there are no judges. (not true)
Robinovich-Einy & Ethan Katsh - where is ODR being used?
low-value disputes or disputes in which geographical distance has made the prospect of online interaction appealing - take place online, asynchronously, and usually without legal representation
Robinovich-Einy & Ethan Katsh - the civil resolution tribunal
- British Colombia
- civil monetary or neighbor claims up to $5000
- Four main stages: (1) information, problem diagnosis, and self help (2) party-to-party negotiation (3) case management (4) adjudication
- written decision and enforceable court orders
Robinovich-Einy & Ethan Katsh - Rechtwijzer
- designed by HIIL
- settles divorce and neighbor disputes
- allows couples to negotiate and do the divorce process themselves
- progress halted, may turn into Justic 42
Robinovich-Einy & Ethan Katsh - Online Solutions Court
- England
- monetary claims up to $25,000
- three stages: (1) exploratory stage, (2) case management and conciliation by case offers, (3) legal determination
- not meant to exclude lawyers
Robinovich-Einy & Ethan Katsh - Matterhorn
- Michigan, Ohio, Arkansas
- outstanding warrants and traffic violations, expected to cover small claims and family dispute
- communication with legal staff and court officials in the process
- if you don’t follow the order that comes from this, your original charges are reinstated
- lessens fear and cost of appearing in court
Robinovich-Einy & Ethan Katsh - New York ODR debt collection
- debt collection cases
- voluntary tiered system
- stages (1) explorer (2) online negotiation (3) legal services or request a third party negotiator
- significant hurdles
Robinovich-Einy & Ethan Katsh - Tyler Technologies-Modria acquisition
- modria is the largest software platform for ODR
- tyler technologies is the largest one in america
Greek - Negotiating while black statistics
- people are more comfortable bargaining within their own race
- white men get the best deals, black women get the worst
- pervasive through many industries
- lots of research surrounding race and ADR has been found to be inconclusive and contrary
disadvantages to med arb
if you have the same person serving as a mediator and then an arbitrator, there can be issues
- the third party may learn things in caucus they use to influence their decision as an arbitrator
- the party may not share things in fear it will influence the arbitration agreement if mediation fails
advantages to med arb
- guaranteed an outcome/resolution
- can take less time
advantages to tiered dispute clauses
- guaranteed an outcome/resolution
- can take less time
disadvantages to tiered dispute clauses
- enforcement of mediation can sometimes be difficult
confidentiality in mediation
- can be based on statute, court rule, or private contract between parties
- binding upon the mediator and parties
mediation privilege
- limits court’s ability to hear potentially relevant evidence
- generally requires basis in court statute or rule
dispute resolution system order
preventative process - negotiated process - facilitated process, fact-finding process, advisory process - imposed process
basic stages of mediation
pre-mediation preparation, orientation, understanding the problem, generating and assessing the options, reaching agreement, closing the mediation, implementing the agreement
mediation facilitative/elective interventions
questions and listening for concerns and underlying interests
integrative problem solver
looks for solutions that address underlying interests and needs
distributive problems solver
tends to focus more on positions, often sees negotiation as a zero-sum game
resistance devaluation
a cognitive bias that occurs when a proposal is devalued if it appears to originate from an antagonist
ZOPA
Zone of possible agreement
reservation point
the lowest thing you’re willing to walk away with
aspiration point
the best possible outcome
BATNA
best alternative to a negotiated agreement
aristotle’s 4 elements of persuasion
ethos, pathos, logos, kairos
ethos
ethics, trust, credibility
pathos
emotional connection
logos
logic
kairos
timing
what are the conflict management styles?
competing, collaborating, avoiding, accommodating, compromising
how do competitors deal with conflict
fight fire with firs, impatient, likes to take control
accommodators
go along to get along, concerned with relationships
collaborators
enjoy working together, wants to satisfy concerns of both sides, likes being creative and inventing new options
compromisers
seek a MIDDLE ground, want the solution to be fair
avoiders
flee from conflict
five basic skills for negotiating
assertiveness, empathy, flexibility, social intuition, ethicality
three primary variations of arbitration
labor management, commercial, international
what law governs labor management arbitration
(NLRA) National Labor Relations Act
what law governs commercial arbitration
Federal Arbitration Act
what las govern international arbitration
New York Convention and Federl Arbitration Act
what changed the courts view on arbitration
Steelworkers Trillogy
what is required to be an arbitrator?
Nothing. People prefer subject matter expertise but really nothing is required.
what is the makeup like of current arbitrators?
mostly older white men.
what are the private dispute resolution organizations
AAA, JAMS, CPR, FMCS, and NAA (labor)
what is the rule of evidence in arbitration?
much more relaxed then in a court room/trial
advantages of arbitration
subject-matter expertise of arbitrators, speed and expense, accessibility
what provisions enforce arbitration clauses
sec. 301 of NLRA, as amended, LMRA sec 301 and
sec 2 of the FAA (transactions involving commerce
what provisions enforce arbitral awards
LMRA 301
FAA sec 10
wilko v. swan (1953)
united states supreme court did not uphold an arbitration agreement. said it was not the intent of congress in the FAA to address the sale of securities
Gilmer v. Interstate v. Johnson (1991)
arbitration clauses can be enforces in employment places and does not prevent the EEOC from investigating
- this is just a forum choice not a waiver of substantive rights
prima paint corp v. flood and conklin manufacturing
separability doctrine - just because the contract was sign under fraud doesn’t mean the arbitration was
what does effasasha do?
prevents sexual harassment claims from being put in forced arbitration
is an error of low or fact ground for vacating an award?
no
is a serious misconstruction of the contract ground for vacating an award?
no
what are non-statutory grounds for vacating an award
manifest disregard for the law, award is contrary to public policy, the “essence” test (labor), award id arbitrary and capricious, award is irrational
Sobel v. Hertz
Arbitrators are not required to explain their decisions
can arbitrators enforce punative damages?
yes and they routinely do
what are the two situations where class actions go into aribtration ?
- a party with superior bargaining power imposes a waiver coupled with an arbitration clause
- the parties are precluded by contract from bringing a class action so they seek to arbitrate their claim on a class wide basis
7 key elements of arbitration agreement
consent
scope of dispute
institution and rules
choosing an arbitrator
choice of law
seat of arbitration
language
what set of rules governs international arbitration
NY convention
what presumption is under the ny convention
a presumption of validity - follows section 2 of the FAA and uncitral model law
in international arbitration, what law governs?
the law where the abirtation is going to take place
what are the two goals of the new york convention
- compel parties to arbitrate
- enforcing arbitral awards
needs theory
conflict arises from unment human needs
modern identity theory
conflict arises from threats to individuals and society or a sense of self worth
social processed theory
conflict is the result of a competition for resources
social structure theory
conflic arises from the nature of a social system, particularly as it related to disparities of power and influence
sec 3 FAA
courts can stay related legal processes
sec 4 FAA
courts can compel unwilling partied into arbitration
section 7 faa
arbitrator can summon and hear witnesses during arbitration
section 9 and 14 faa
arbitrator can issue an award that may be entered as a court judgment
section 11 faa
court can authorize or modify an award
section 10 faa
allows court to vacate an award
