Final exam: take home; one question; choose best method for resolving dispute
Be sure to include litigation as a possible resolution.
Up to 95% of cases are settled before going to trial. This is largely due to ADR methods. Additionally, larger corporate clients are looking for better, quicker methods to resolve disputes.
Observation is very important when participating in any dispute resolution process.
Mediator Job Descriptions:
oClarify/identify the issues
oNeutralize unproductive behaviors
oUncover and identify shared/common interests and identify parties of progress that has been made and stake parties have in the agreement
oRefocus the parties to the future
Conflict – the clash of interests and aspirations
Categories of Dispute Resolution Processes
1. litigation – to a judge or a jury
2. arbitration – if private, contractual and consensual; parties would agree in their contract to resolve any disputes through arbitration
3. rent a judge – permitted statutorily in some jurisdictions; parties employ a retired judge to conduct a private trial. Usually follow same rules and procedures of a public trial. Used for speed and privacy.
1. negotiation – resolution is not guaranteed; parties may not be able to agree
2. mediation – resolution is not guaranteed, although mediation typically does reach resolution
3. conciliation – very similar to mediation, except third party is not as active as a mediation
1. med arb
2. arb med
4. early neutral evaluation
5. summary bench or jury trial
Basic versus Mixed/Hybrid Processes
see mixed list above
Default Processes that Guarantee Resolution
2. arbitration – if private, contractual and consensual
3. rent a judge
In this scheme of categorization, all other processes are negotiation or processes in aid of negotiation.
Court-annexed versus Private Processes
Most courts have developed their own in-house ADR programs. For example, our Ohio district court has court-annexed mediation, arbitration, summary jury trial, summary bench trial, and early neutral evaluation. (All but early neutral evaluations are fairly typically added.) Most district courts have at least court-annexed mediation. Majority of ADR resolution occurs through court-annexed processes. Court-annexed arbitration does not often result in a binding decision, unlike private, contractual arbitration, which usually does. Reason for this is recognition of the Constitutional right to a trial.
Negatives of ADR
o no procedural safeguards
o large institutions can take advantage of individuals
o ADR resolution does no
en the lawyer and the client; lawyer takes an active role in guiding client in decision-making, as a friend would.
Does lawyer have obligation to discuss ADR with clients? This is a controversial question.
oA lawyer’s negotiation skills are more outcome determinative than a lawyer’s substantive legal knowledge.
oLawyers generally have a competitive attitude (power-oriented; individual pursues his or her own goals at the other’s expense) in conflict situations.
oPlanning and preparation is most important trait in a successful negotiator
Negotiation Vocabulary and Concepts(p. 43 in supplement)
oAlternatives – walk-away alternatives which each party has if agreement is not reached. These are things that each party can do by self-help, without requiring the agreement of the other. In general, neither party should agree to something that is worse for that party than its “BATNA” – its Best Alternative To a Negotiated Agreement
oInterests – what it is that somebody wants; any negotiator should be clear in what his or her client wants
Options – the full range of possibilities on