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Exam questions on alternative dispute resolution

06/01/2021 Client: saad24vbs Deadline: 3 days

Chapter 3


Alternative Dispute Resolution


I. What Is The Best Method To Resolve A Dispute?


Alternative Dispute Resolution


ADR


Procedures such as negotiations, mediation and arbitration to resolve disputes in a more efficient and effective manner


Speedier


Less expensive


Use of an expert as the decision maker


Proceedings are confidential


Decisions are final and not appealable


Less formal


ADR


does not refer to any one type of procedure. ADR refers to a multitude of choices individuals have in resolving disputes outside the court


II. Negotiation


Distributive Negotiation

Integrative Negotiation

Negotiation Stages

Negotiation


When parties voluntarily work out their differences and reach an acceptable solution to the dispute in a peaceful manner


INTEREST-BASED NEGOTIATION focuses, not on positions, but rather on the underlying interests or needs


Distributive Negotiation

Win or Lose


When parties are stuck on their positions, they are probably involved in a distributive negotiation


B. Integrative Negotiation


Win / Win


Parties participate in joint problem solving


When the parties are concerned about the relationship between them, integrative negotiation works best


C. Negotiation Stages


Preparation


Determine goals

Determine goals of other party

Identify arguments for and against yourself

Identify interests and needs of both parties

“Stand in their shoes”

Best Alternative To a Negotiated Agreement (BATNA)


2. Actual Negotiations


Try to focus on interests, NOT positions


Focus on needs, NOT wants


Don’t personalize the situation


Don’t interrupt


Listen and repeat what you heard


Don’t dwell on disagreements


Keep your cool, don’t let anger rule


Silence is golden


3. Conclusion of Negotiations


Remember your BATNA


Don’t “burn any bridges”


Good options, combined with deadlines, often create the energy needed to reach a settlement


Review and clarify the agreement, then sign it


III. Mediation


Judicial Mediation

Private Mediation

Advantages of Mediation

Mediator

Process of Mediation

A. Judicial Mediation


Court-Ordered


Judges in participating counties may order the parties to undertake mediation


Parties may still maintain the right to proceed with litigation


B. Private Mediation


Occurs when the parties contractually agree to use mediation as a method of resolving their dispute


C. Advantages of Mediation


Most disputes settle prior to litigation


Reduces both time and costs


Neutral 3rd Party provides a means of focusing on the real issues of the dispute


Parties have an active role in reaching the settlement of the dispute


D. Mediator


Facilitates the negotiations between the parties


Is a neutral 3rd party


When mediators meet individually with each party in a caucus, it is called SHUTTLE DIPLOMACY


Mediator must obtain information from both parties to gain success


No special qualifications or requirements to become a mediator


E. Process of Mediation


Stage 1 – Mediation Process Started


Stage 2 – Opening Session


Stage 3 – Identify Interests and Needs


Stage 4 – Mediated Negotiations


Stage 5 - Conclusion


IV. Early Neutral Evaluation (ENE)


ENE


Some courts have begun using an ADR technique referred to as early neutral evaluation


It occurs when a judge assigns an evaluator to meet with the parties already involved in a lawsuit


The evaluator will review the case and inform each party how he “sees” the case and how it will likely play out in court


The evaluator attempts to get the parties to reach a settlement and writes an evaluation


V. Mini-Trials


A Mini-Trial


is a nonbinding ADR technique that closely resembles a court trial


Parties select a neutral 3rd party for advisement


Parties will agree on the procedures to follow


Procedures will address what type of “discovery” will be permitted


Decision makers from each side attend the mini-trial


Goal is, upon hearing the facts for themselves, the decision makers will be more inclined at that time to reach a settlement to the dispute


VI. Summary Jury Trial


In a Summary Jury Trial…


the parties to a dispute agree to present a shortened case presentation to a mock jury


Arbitration

(Most Used Method)

Judicial Arbitration

Private Arbitration

Starting the Arbitration

Selecting the Arbitrator

Discovery

Final Decision

Arbitration


Most well known method of ADR techniques


Binding or Non-Binding


Both California and Federal Government have passed legislation favoring arbitration


Online ADR is changing traditional arbitration process


A. Judicial Arbitration

(Court-Annexed)


Court orders the case to arbitration


Non-Binding


Either party may ask for a TRIAL DE NOVO


There are costly risks in not accepting the arbitrator’s award


B. Private Arbitration


The duty to arbitrate dispute arises from either statutory obligation, or through a contract entered into between the parties


Giving up the right to litigate a dispute is a serious matter and arbitration clauses should be knowingly executed


The arbitration clause establishes the scope of the arbitration and the arbitrator’s powers


C. Starting the Arbitration


A SELF-EXECUTING ARBITRATION clause will provide a method for selecting the arbitrator, procedures for how the arbitration will be conducted, and a provision for continuing the arbitration if one party refuses to proceed


A notice is sent to the other party which contains what the dispute is about, the amount of damages, and what remedy is being sought.


A response is due within 10 days of service in the state, and within 30 days if served outside the state.


D. Selecting the Arbitrator


One advantage of arbitration is the ability of the parties to select the arbitrator


A STRIKE LIST from an association is a list of persons from the panel of neutrals sent to each party


To ensure that the arbitrator is neutral, the person selected must disclose information that might case bias in favor of one of the parties [CCP§1281.9]


The arbitrator can issue subpoenas to ensure witnesses will attend


E. Discovery (limited)


Discovery (seeking facts) is normally limited in arbitration


Limited to claims involving personal injury unless the arbitration expressly provides for it [CCP§ 1283.05, 1283.1]


Example: (from CAR form Residential Purchase Agreement and Joint Escrow Instructions)


F. Final Decision


The arbitrator’s decision is called an AWARD


Where the award is binding, it is considered a final judgment in the dispute


In most cases, the decision of the arbitrator is final


Awards can be vacated if certain violations/corruptions/errors occurred


G. Online Arbitration


Emails, videoconferencing, and mobile devices can be used for online arbitration


Arbitration agreements and proceedings can be done in an online setting


VIII. Private Judging


Reference

Temporary Judging

A. Reference


A REFERENCE is like arbitration, except the decision is appealable through the court system


A GENERAL REFERENCE is where the referee tries any and all issues of the dispute


A SPECIAL REFERENCE is where the referee addresses a specific question of fact


The only requirement for a person to serve as a referee is that the person be a resident of the county where the court is located [CCP§ 640]


B. Temporary Judging


The California Constitution in article VI, section 21 provides:


On stipulation of the parties litigant the court may order a cause to be tried by a temporary judge who is a member of the State Bar, sworn and empowered to act until final determination of the cause


The decision rendered by the temporary judge is final and carries the same weight as if made by a permanent judge

A decision issued by a temporary judge is subject to appeal based on errors of fact or law

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