Dispute Resolution Outline
Chapter 1 (Disputing Procedures)
· Dispute resolution: Alternatives to litigation
o Negotiation
o Mediation
o Arbitration
this particular scenario
· The Conflict Resolution Continuum
Consensual Processes Adjudicatory Processes
ß——————————————————————————————-à
Negotiation Mediation Adjudication Trial
· You can use a decision tree to help decide if you should do litigation or ADR
· Why ADR?
o Cheaper
o More efficient, faster
o Reduce courts’ caseload/judicial overload
o More flexibe/open responsive to participants’ needs
o Privacy confidentiality
o Speedy settlement to those disputes which were disruptive to community/family
o Broadening access to “justice”
o Expert can be arbitrator rather than judge who may have no knowledge in particular field
o Win-win resolution instead of adjudication’s win-lose scenario
o Some people want to avoid lawyers altogether
· What are the problems with ADR:
o Less consistency
o Binding, no appeal
o Only binds those that are part of arbitration, can be more taxing than we’d like!
o Confidentiality, not always a good thing
Against Adjudicative Process/ Settlement
Fiss Argument
For Settlement/ Against ADR
Carrie Menkel Argument/ Response
1. Imbalance of Power in Settlement
The more $ and resource someone has, the greater the ability to influence the settlement (person with less $ is disadvantaged in the bargaining process)
If person vs. corporation and need damages right away, a settlement will take long time to get, whereas ADR allows for quick response
Imbalance of power can distort judgment through better presentation, etc. to judge/jury
1. Settlements that are consensual represent the goals of democratic process and are the means by which we have a dispute resolution
2. No final judgment
Judgment usually not the end of the lawsuit but the beginning; plus what if there is continuous involvement and therefore continuous struggle?
No vigorous enforcement
2. Settlements permit broader range of possible solutions that may be more responsive to both party and system needs
3. Judges create peace but NOT justice
Socially sad situation
3. Settlements may be more “cathartic” for the person who had a shit end of the stick and wants to “tell his story” à maybe he wants people to know that there was a case, and therefore, doesn’t want to keep it confidential (Lots of tort cases)
4. When used properly, the settlement system may actually provide more JUSTICE than ADRà questionable?
WHY DO PEOPLE SETTLE?
They want expediency
Publicity
Certainty
Predictability (cash in hadn)
Want to maintain certain relationship
Don’t want judicial precedent
Why DO SOME PEOPLE WANT TO GO TO COURT?
Want to tell judge your story
Jury trial has higher damages
Other party is SO nasty that you just don’t want to settle
Court
Arbitration
Mediation
Negotiation
Nature
Formal Hearings
Informal Hearings
Informal Meetings with parties or representatives
Informal meetings with parties or representatives
Decision Maker
Judge or jury
Arbitrator
Parties
Parties
Voluntary/Involuntary
Involuntary
Voluntary
Voluntary
Voluntary
Third-Party Role
Decide based on application of law or facts
Imposed judicial decision-maker (JUDGE/JURY) who generally have no specialized expertise in dispute subject
Decide based on terms of agreement to arbitrate
Arbitrator requires short amt of time to understand the facts of the case compared to judge or jury since typically an EXPERT in the field
Facilitate negotiation between parties
No third-party facilitator
Basis for Decision
Law
Standards provided by arbitration agreement (e.g: industry practices)
Interests or positions of parties
Interests or positions of parties
Desired Result
Principled Decision, supported by reasoned opinion
Sometimes principled decision supported by reasoned opinion; sometimes compromise without opinion
Mutually acceptable agreement sought
Mutually accepted agreement sought
Confidential
Generally no
Yes, unless judicial review sought
Generally, yes
Generally, yes
Binding
Yes. Court Decree; subject to appeal
Yes, binding subject to review on limited grounds
Yes, IF settlement agreement enforced as a contract; sometimes, agreement embodied in court decree
Yes, IF settlement agreement enforced as a contract
Appeal
Yes
Generally no, substantive review
N/A
N/A
Structure of DR
Formalized and highly structured by predetermined rigid rules (ie: Civil pro and evidence)
Procedurally
Step four: Commitment (Driving through)
Importance of Negotiation can be illustrated in this hypo
HYPO – There are a dozen oranges and the parties dispute the ownership of the oranges. One party to the dispute wants to make orange juice and the other party wants to make a cake. Give the juice to the one who wants to make juice and the rinds to the one who wants to make the case. Mediation can do this whereas adjudication will be just concerned with who owns all 12 oranges. It allows for real inquiry into what the needs or interests of the parties really are, this is an important aspect of mediation
II. Negotiation Style/Approaches
TWO MAIN APPROACHES TO NEGOTIATION: ADVERSARIAL AND PROBLEM-SOLVING
Adversarial approach: Grounded on the assumption that there is a limited resource such a s money, and the parties must decide whether and how to divide it.
In this situation, the parties’ positions conflict: what one gains, the other must lose
Typical tactics include those designed to uncover as much as possible about the other side’s situation and simultaneously mislead the other side as to your own situation
Problem Solving Approach: Seeks to meet the interests or underlying need of all parties to the dispute or transaction and accordingly tends to produce strategies designed to promote the disclosure and relevance of these underlying needs
Tactics: Increase the number of issues for bargaining/ “expand the pie” before dividing it
Adversarial
Problem-Solving
Goal
Maximize self gain
(ex: auto accident à not worried about other guy’s concern à want maximum amt of $ damages)
Joint gain
(Ex: child custody, contract dealing, create working relationship in the future)
Behavior
Competitive; positional bargaining **
Facilitate; interest bargaining **
Perception of issues?
Distributive: how many pieces of the pie do I get
Zero Sum: Slice of pie= 0 for the other person and I get 10
Win-Lose: I win, he loses
Integrative
Non-Zero
Win-Win
* Try to be the perfect blend of adversarial (aggressive) and problem solving
** See below for definitions of positional bargaining and interest bargaining
In Negotiations, there is always REACTIVE DEVALUATION:
