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Alternative Dispute Resolution
SUNY Buffalo Law School
Su, Rick

 
 
ADR
 
9/2/08
 
-95% of civil cases settle
– attorneys exist to prevent conflict and resolve conflict/disputes
 
 
                                 Discussion Intervention Accountability
                    Ignore                                                                   Arbitration
 
         Denial                                                                                             Assault
 
 Walk Away                                                                                                 Blackmail
                                                                                                                               Lawsuit Suicide                                                                                                                        Murder  
 
   
– disadvantages of litigation: incredible expense, time consuming, drain: emotional on company and individual, risky, countersuit, bad publicity, no control over the result, don’t get to say your peace, bad precedent
 
Mediation: at end of mediation you have binding contractual agreement, enforceable
            – who is present? Two parties and mediator
– results: can achieve results that wouldn’t otherwise get in court, can get immediately
            – formal or informal as you want
            – any topics can be discussed
            – quasi-official, operating under arm of court

 
Arbitration
            – present: arbitrator, attorneys, parties, witnesses
– creature of contract: two sides have agreed to take dispute, give up right to jury and allow someone else to make a binding decision on dispute
– abbreviated version of case, but still evidence in form of testimony, documents, exhibits
            – persuade based on facts, whereas in mediation not factfinding but settlement
 
Negotiation
            – process, compromise, reach resolution
            1. Preparation: informing, probing, discussing with client first
                        à find out where you are at, what client wants
                        à investigation into who other side is, opposing counsel
                        à have a clear focus: what do you want to accomplish? Money,                                                injunction, etc.
à historical background, knowing what your case is worth: managing expectations
à build trust with the other side: introduce yourselves, returning phone calls, doing what you say you will
Elements of a Conflict
– issue (theft of trade secrets, copyright issue, etc)
– position
– interests
            ~ competition
            ~ control
            ~ accountability
 
Good communication
– listening is different than hearing: active listening
– avoiding the topper (one-upping)
– choosing words that don’t put other side on defensive
– ask yourselves why not?
 
9/16/08

ere you would be at
 
Negotiations Break Down
– cranky, tired, hungry, stressed
– sarcasm, rude tactics, scare tactics
– people are afraid of appearing weak, so as to avoid showing weakness they go in with mindframe that they are not going to settle
– ego
– too early in process: not enough information
– impasse
            à tackle what you can
            à work different angles
            à take a break and come back
            à action list
            à humor
            à switch issues
 
 
9/23/08
Ethics and Mediation
– rules of professional conduct: model rules that govern how you act in professional setting
– not as many rules in mediation
– broad rules but mostly ethical considerations play a part
– ethics of exchange: back and forth in bargaining, make some difficult choices
Lying about:
            – relationship with client
            – attributes/characteristics of client
            – consequences of no settlement
– presence/absence of other bids, real estate: “make an offer, phones ringing off the hook”
– ethics of advocacy: when clients lie, lead you to believe something else, withhold facts