Alternative Dispute Resolution – Fall 2012
Prof. Kovach
I. A FUTURIST VISION (paradigm shift)
A. What has been does not have to be what is going to be.
B. Multi-door courthouse…
1. Adjudication, Arbitration, Mediation, Negotiation, Hybrid Processes
C. Escape from the old set pattern into what may work better.
D. ADR is a participatory process.
E. ADR will lead to…
1. Less than 5% of now judicial decisions.
2. Other processes.
F. Always advise client of ADR
G. TX ADR statute
1. Mediation: impartial person facilitates communication between parties to promote reconciliation, settlement, or understanding. Cannot impose J/.
2. Arbitration: nonbinding unless parties agree in advance for it to bind. Specific award given by a third party, procedure like a trial.
3. Mini-trial: agreement of parties; defines issues and develops basis for realistic settlement negotiations. Parties and counsel get advisory opinion.
4. Moderated settlement conference: case evaluation and realistic settlement negotiations. Panel of 3 impartials give advisory opinion.
5. Summary jury trial: case evaluation and development of realistic settlement negotiations, present case before a jury of 6 – nonbinding.
II. NEGOTIATION
A. On your own turf (home base tactic – but you can’t leave)
B. Outnumber the other side (more people = more effective?)
C. Time = advantage
D. Know the facts thoroughly
E. Pick a position and don’t retreat (or be flexible?)
F. Designate a demand as a precondition (or start little)
G. Make other side make 1st offer?
H. Make 1st demand high?
I. White hat, black hat
J. Invoke the law
K. Be tough (competitive)
L. Appear irrational if helpful?
M. Raise demands as negotiation progresses (or work to middle ground)
N. Claim you have no authority to compromise?
O. Get final OK from client (obtain assurance before you begin)
P. You reduce the agreement to writing (better terms for your side)
Q. –Lawton—
1. Reality checking
2. Reassess expectations along the way
3. Give opposite historic perspective
4. Who goes first
5. 3 parts to each concession
a. Articulate that it is meaningful
b. Decrease the size of subsequent concessions
c. Have your concession perform double duty (resolve and trade)
6. Establish total credibility
7. Don’t relax when minds meet (assume the drafting responsibility)
R. Distributive v. Integrated bargaining
1. Fixed pie and distributing what is available (claiming value)
2. Come to an agreement and create value for all (creating value)
3. This is the Negotiator’s dilemma (empathy v. assertiveness)
S. Principled Negotiation (“Getting to Yes”)
1. Separate the people from the problem
2. Focus on interests and not positions
3. Invent options for mutual gain
4. Insist on using objective criteria
5. Know your best alternative to a negotiated agreement (BATNA)
T. TX Rule 11 enforces settlement agreements
1. Any suit pending, agreement must be in writing, signed, and filed or made in open court for record.
U. Deal-making negotiation (terms of entering a relationship) – forward
V. Dispute
Development of crisis (processing period)
4. Agreement or breakdown
III. MEDIATION
A. Characteristics
1. Voluntary process
2. Nonbinding, could be contractual if agreed
3. Mediator is a 3rd party facilitator, neutral, selected by both parties
4. Informal
5. Focus of the proceeding is on interests
6. Outcome is the mutuality of both parties’ interest
7. Private – confidential and closed
B. Different styles (evolving not finite)
1. Total neutrality – mediator contributes nothing
2. Advisory/Evaluative mediation – help and advice to understand case)
3. Educational/Info. Gathering – structured to educate parties
4. Caucus method – mediator is a go-between
C. Advantages – (same as Neg. and ADR above)
D. Disadvantages
1. lack of predictability in the process, not concrete
2. informality breeds contempt for the law
3. no rules
4. waste of time required by court
5. no public airing
6. no fairness and no justice assured
7. not appropriate for all disputes(like if you need a precedent, etc.)
8. Is the judge abdicating responsibility?
