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
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