Dispute Resolution Law Outline

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Chapter 1 (Disputing Procedures)  Dispute resolution – alternatives to litigation o Negotiation o Mediation o Arbitration  You can use a decision tree to help decide if you should do litigation or ADR  Why ADR? o Cheaper o More efficient, faster o Help courts reduce backlogs o Keep privacy o An expert can be the arbitrator o Might be able to work out a win-win solution  What are the problems with ADR? o Less consistency o Binding, no appeal o Only binds those that are part of the arbitration o Confidentiality – not always a good thing Dispute Resolution Processes Mediation Arbitration Voluntary Voluntary If agreement, Binding, subject to enforceable as review on limited contract; sometimes grounds agreement embodied in court decree Party-selected outside Party-selected thirdfacilitator party decision-maker, often with specialized subject expertise

Negotiation Voluntary If agreement, enforceable as contract

Litigation Involuntary Binding; subject to appeal

No third-party facilitator

Usually informal, unstructured

Usually informal, unstructured

Unbounded presentation of evidence, arguments and interests

Unbounded presentation of evidence, arguments and interests 1

Procedurally less formal; procedural rules and substantive law may be set by parties Opportunity for each Opportunity to present party to present proofs proofs and arguments and arguments

Imposed, third-party neutral decisionmaker, generally with no specialized expertise in dispute subject Formalized and highly structured by predetermined, rigid rules

Mutually acceptable agreement sought

Mutually acceptable agreement sought



Sometimes principled decision supported by reasoned opinion; sometimes compromise without opinion Private, unless judicial review sought

Principled decision, supported by reasoned opinion


Chapter 2 (Negotiation)  Negotiation – communication for the purpose of persuasion – is the preeminent mode of dispute resolution  Be aware of ethical issues such as misrepresentation of material facts, communication with client, confidentiality, etc. Adversarial maximize self gain positional bargaining competitive distributive zero-sum win/lose Problem Solving seek joint gain facilitative interest bargaining integrative non zero sum win/win

Goal Behavior Perception of issues?

Chapter 3 (Mediation)  Mediation – is negotiation carried out with the assistance of a third party. o Conversation o Voluntary o Non binding o Maintains relationships o Confidential  Stages o Orientation – meet with clients, bond with them, answer questions, discuss confidentiality o Gathering info and identifying issues o Negotiating solutions, generating options  The mediator has no power to impose an outcome on disputing parties  Caucuses – are private meetings the mediator conducts with each party during the course of mediation  Reasons for caucuses o Gather info o Exchange information o Help parties negotiate o Build trust and report  10 reasons to mediate (according to the guy from the EEOC) 2

o o o o o o o o o o

Free Fair and neutral Saves time and money Confidential Avoids litigation Fosters cooperation Improves communication Discover the real issues in your workplace Design your own solution Everyone wins

Chapter 4 (Arbitration)  Private, informal trial procedure for the adjudication of disputes Arbitration 1. More control 2. Private/ confidential 3. Very limited grounds to appeal/ vacate arbitration 4. Quicker, more efficient, less expensive 5. No class actions/ no consolidation (?) (unconscionable?) 6. Precedent? Law applicable? Any remedy? 7. No/limited discovery 8. No jury 9. Expertise of decision maker 10. No rules of evidence 11. No reasoned decisions 12. No formal motions practice (esp. dispositive) 13. Informal 14. Promoted harmony 15. Private funding Litigation 1. Less control 2. Public/ non confidential 3. Full appellate rights 4. Slow, inefficient, and expensive 5. Class actions/ consolidation 6. Law/ legal remedies/ precedent 7. Discovery 8. Judge/ jury 9. No expertise 10. Rules of evidence 11. Reasoned decisions 12. formal motions practice 13. Formal 14. Destructive 15. Public funding

Chapter 5 (Combining and Applying the Basic Processes)  Steps to design a dispute system o Ascertain goals of the disputing system o Establish priorities among those goals o Develop a new disputing system better suited to those goals o Consult throughout the planning process with clients and others affected by the disputing system o Anticipate and plan for potential problems with the new system o Help to implement and re-assess the new system  You can combine the basic dispute resolution systems into hybrid versions 3

o Med-Arb – in this process, the neutral functions first as a mediator, helping the parties arrive at a mutually acceptable outcome. If mediation fails, the same neutral then serves as an arbitrator, issuing a final and binding decision.  But what is the problem?  At caucuses, want parties to tell mediator what’s really going on – arbitrator doesn’t usually learn all that stuff  Gafni doesn’t like doing this o Arb-med – appoint arbitrator to hear case in its entirety, arbitrator writes his or her opinion down, seals it in an envelope and then person becomes the mediator and tries to settle the case  Any problems?  Person may subliminally try to mold parties to reach the decision that the person has already decided as a arbitrator o Court-annexed arbitration – used for smaller cases, before you go to ct, if case demand is under a certain amount, you have to go to arbitration first  Usually 3 arbitrators will give final decision but either side has a right to appeal and get trial de novo (arbitration never happened)  Why is appeal auto? b/c parties have right to jury trial in CON o Mini-trial – in the mini-trial, most often used in business disputes, summary presentations are made by attorneys for each party to a panel consisting of a neutral advisor and high-level executives with settlement authority. At the conclusion of the presentations, the executives attempt to negotiate a resolution of their dispute. If they are unable to do so, they may call on the neutral advisor to give a prediction of the likely outcome if the matter is litigated. o Summary Jury Trial – is an adaptation of the mini-trial for cases in which the parties want more direct information about likely jury reaction than they would receive from the prediction of a mini-trial neutral advisor. The summary jury trial takes place in court with a judge or magistrate presiding and an advisory jury, drawn from the regular jury pool, in the jury box. The jurors are usually not told that their role is advisory until after they return their verdict. Thus, they are encouraged to treat their decisional task as serious as would an actual jury. o Baseball arbitration – aka final offer arbitration – arbitrator must pick what either one of the parties suggest, arbitrator does not have discretion to decide compromises, can’t pick the middle ground, can only pick what party A or party B suggests – either 5 million or 10 million  It started in baseball but is now used in other contexts  What are the consequences?  Causes parties to reduce their demands – baseball player will start asking for less money (8 million) b/c he wants arbitrator to choose his number, baseball team will start to increase their offer (6.5 million)  Very often, parties are actually able to settle the case o Night baseball arbitration – arbitrator may not know what either side wants, parties tell the arbitrator to just give them a number, arbitrator says that 8 million 4


is reasonable, party with the number closest to arbitrator’s number wins, their number is chosen  Same effect as baseball arbitration o High-low arbitration – each party hedges their bets  party’s afraid of losing the case – DR wasn’t neg but if P wins, then D will have to pay big  caps exposure – no matter what jury or arbitrator’s verdict is, the parties will agree that the payout will not be more than 7 million; in return, D promises that even if they lose, they will pay P 2 million  Happens all the time!  Called “molding the verdict”  Can also do the same thing with liability – can agree that certain person is liable and have arbitrator decide amount  Or can do the opposite – can agree on amount and have arbitrator decide liability  Note: can party-appointed arbitrators talk to people – depends what rules you’re under – FAA or AAA or other?  Ombudsman – person who works in co, usually large org, person has a problem, thinks they are being discriminated against, can’t talk to boss about it, employees have to have somewhere to go, created independent Ombudsman office – person is supposed to investigate it, give employee advice, and keep it all confidential, maybe even bring to higher-ups if warranted o Similar to HR departments but different Dispute Systems Design (casebook pages 323 – 330) o Prevention  Notification and Consultation  Post-Dispute Analysis and Feedback o Interest Based Procedures  Negotiation  Mediation o Build in “loop-back” procedures  Advisory Arbitration  Mini-Trial  Summary Jury Trial  Cooling-Off Period o Provide low-cost rights and power backups  Conventional Arbitration  Expedited Arbitration  Med-Arb  Final Offer Arbitration o Arrange procedures in a low-to-high cost sequence o Provide the necessary motivation, skills, resources, and environment

Chapter 6 (Courts and ADR) 5



Sometimes the courts compel participation in a dispute resolution system – this can have both positive and negative effects o Rates of voluntary uses of ARD can be low – but parties generally respond favorably to mandated procedures o May lead to a cheaper, faster settlement OR may become a costly hurdle to eventually end up right back in court o May lead to more informed neutral with more time to listen to the whole story OR dispute resolution programs could become flooded with cases being removed from the courts and are neutrals would be less likely to devote the needed time o The parties may have a preference for certain procedures which is ignored with mandatory procedures o Broadly mandated participation may sweep cases into an inappropriate process, resulting in wasted time and effort, unfair settlements, etc. We also talked about the EEOC in reference to this chapter – here are the types of claims to go to the EEOC o Age o Race o Gender o National Origin o Disability o Religion o Equal pay

Chapter 7 (Confidentiality)  In deciding whether to recognize a mediation privilege, legislatures and courts weigh the need for the evidence against the importance of effective mediation and the utility of confidentiality in promoting the effectiveness of mediation.  Parties generally sign some form of a confidentiality agreement that spells things out Chapter 8 (Family Disputes)  This chapter discusses how mediation has been used in divorce disputes, and mediation has also been used in domestic violence cases.  Family disputes have characteristics that make them well suited for ADR o Unable to resolve dispute on their own o Continuing and interdependent relationships o Conflicts often involve complex interplay of emotional and legal complaints o Great need for open-ended, unstructured process that permits disputant to air their true sentiments We did not cover the remaining chapters Chapter 9 (Public Disputes) Chapter 10 (International Disputes) Chapter 11 (Learning from other Cultures) Chapter 12 (The future of ADR) Chapter 13 (Dispute Resolution Problems) 6

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