Dispute Settlement: ALTERNATIVE DISPUTE RESOLUTION Chapter 3

  • View
    221

  • Download
    0

Embed Size (px)

Transcript

  • Dispute Settlement: ALTERNATIVE DISPUTE RESOLUTIONChapter 3

  • Alternative Dispute Resolution SystemsExpenseTime, Cost, EmotionsMostLeastTrial & AppealArbitrationMock TrialMinitrialMediationNegotiatedSettlement

  • Reasons For Settlement Without LitigationCostsAttorneys FeesCourt CostsPersonal ReasonsCompromise Is InstinctiveDislike Of TroubleOpinion Of OthersBusiness ReasonsBad For BusinessSympathetic Juries

  • Concerns with Using ADRConflict with Constitution?Legal system for the poorThreat to common law systemMay need precedentUnfair advantageIs it really confidential?

  • Types Of NegotiationsPosition-Based

    Interest-Based

  • Getting to YesThe Seven Elements of NegotiationINTERESTS What do people really want?OPTIONS What are possible agreements or bits of an agreement?ALTERNATIVES What will I do if we do not agree?LEGITIMACY What criteria will I use to persuade each of us that we are not being ripped off?

  • The Seven Elements of Negotiation (contd)

    COMMUNICATION Am I ready to listen and talk effectively?RELATIONSHIP Am I ready to deal with the relationship?COMMITMENT What commitments should I seek or make?

  • MediationThird Party Assists In Resolving Dispute- Avoid LitigationParties Agree To UseReduces Court Caseload- No Judicial ReviewSettlement = Mutual Choice

  • MediationAdvantage To PartiesDetermine To PursueRetain Control Of OutcomeDisadvantageNo EnforcementSelection Mediator- Qualifications

  • Mediation ProceduresMediatorOpening Statement/RulesPartiesView StatementExchangeDiscuss Options- CaucusAgreementWritten/Signed

  • Typical Arbitration Contracts Stockbroker & ClientCommodities Broker & CustomerBrokerage Firm & EmployeeAttorney & Client

    Collective BargainingOwner-Contractor & Contractor-SubcontractorInsurance Co. & InsuredPublic Carrier & ShipperInternationalTechnical cases

  • ArbitratorsChosen By Disputing PartiesExpertiseKnowledge of Common Law Of ShopBeyond Legal ExpertiseNumber = 1 3Authority- Granted By Agreement

  • ArbitrationThird Party (Arbitrator) Makes Final DecisionMandatory v. VoluntaryFinal Decision (Award)- BindingReasonsQuick/Inexpensive ResolutionEase Court DocketsExpert Assistance

  • Voluntary And Contract-Based ArbitrationParties Agree To Method By:Original Agreement/ContractParties Agreement

  • Mandated ArbitrationStates AdoptingSpeeds Up ProcessMany Qualified ArbitratorsTypes Of Cases
  • Judicial Review Of ArbitrationVoluntary/Contract-BasedAward Is FinalFindings Of Fact/Law- ConclusiveLimitedCorrect Fraudulent/Arbitrary Actions/Against Public PolicyStatutorily-MandatedIn Accord With Procedural/Due Process LawDe NovoFederal Arbitration Act

  • Federal Arbitration ActEnacted 1925Revised/Reenacted 1947PolicyInterstate CommerceFavors UseState Law- Supremacy Of U.S. Constitution/Commerce Clause

  • ADR Act of 1998Requires creation of ADR programs in the federal district courts.

  • Other ADR AlternativesCombinationMock TrialCitizen ReviewReality For PlaintiffMinitrial- ConfidentialFocus On Central IssuesBack To Business Problem3rd Party Neutral-decision is nonbinding

  • Other ADR AlternativesSummary Jury TrialNonbinding jury trialCase Evaluation or Early Neutral EvaluationA lawyer with expertise in the field assists parties in streamlining the case, and possibly arriving at settlement