Module 2: ADR

Question 1

Mediation

Answer 1

Negotiation moderated by a third party who may make suggestions but not impose a solution

Question 2

Arbitrator

Answer 2

A third party to a negotiation who considers the evidence and issues a decision

Question 3

Arbitration

Answer 3

Private substitute for a trial, in which an arbitrator issues a decision on the dispute

Question 4

CA judges usually order arbitration for cases w/ claims

Answer 4

$50,000

Question 5

shuttle diplomacy

Answer 5

Mediator talks to each hostile party one-on-one

Question 6

T/F: The California Association of REALTORS® residential purchase agreement form requires buyers and sellers to try mediation before filing suit or using arbitration

Answer 6

True

Question 7

T/F: If only one party initials the arbitration clause, it is not binding on the other party

Answer 7

True

Question 8

If either party brings an action in state court despite initialing the arbitration clause, the other party may bring a motion to ____ the dispute to be resolved in arbitration.

Answer 8

compel

Question 9

T/F: The mediation clause does not have to be initialed by both parties to take effect

Answer 9

True

Question 10

If any party fails to attempt to resolve a dispute prior to filing a court action, that party is not entitled to recover ______ fees per the _____ fees provision of the purchase agreement even if that party prevails in the action

Answer 10

attorney’s

Question 11

T/F: Many times, the attorney’s fees incurred is as much or even more than the damages suffered by the party:

Answer 11

True

Question 12

Can lawyer’s attend the mediation w/ their clients?

Answer 12

Yes

Question 13

T/F: Mediation results are automatically legally binding

Answer 13

False

Question 14

When are mediation results binding?

Answer 14

When the parties put the results into a binding contract

Question 15

T/F: If no solution is reached through mediation, the injured party may still take the case to court or arbitration

Answer 15

True

Question 16

Who pays for mediation fees?

Answer 16

Both parties split the cost

Question 17

Y/N: Is a non-binding arbitration reviewable by the Courts?

Answer 17

Yes

Question 18

Alternative Dispute Resolution (ADR)

Answer 18

methods of solving a problem by bringing in an impartial outsider but not using the court system

Question 19

If no arbitration clause is in a contract, the parties can still go to arbitration by executing a _____ Agreement

Answer 19

Submission

Question 20

An arbitrator’s decision is called a(n) ____

Answer 20

award

Question 21

When a mediator meets with one of the parties to get them to focus on their interests and needs, it is called a ____

Answer 21

caucus

Question 22

For mediating COMPLEX legal disputes, the fees of an experienced professional mediator are similar to arbitrators’ fees, often costing several hundred dollars (or more) per hour, plus ____ fees

Answer 22

administrative

Question 23

An arbitrator is usually a retired ____ or ____ w/ experience in the subject matter of the case

Answer 23

Judge or lawyer

Question 24

How do parties present evidence during arbitration?

Answer 24

They take turns

Question 25

Is a court reporter present in mediation or arbitration?

Answer 25

Arbitration

Question 26

Who pays arbitration fees

Answer 26

Both parties split the cost

Question 27

Is involuntary arbitration binding?

Answer 27

No

Question 28

Involuntary arbitration

Answer 28

any arbitration required by statute or court order

Question 29

___ arbitration can be appealed in a court of law

Answer 29

Involuntary

Question 30

What type of arbitration is usually required by a contract?

Answer 30

Mandatory / Voluntary

Question 31

What type of arbitration is usually binding?

Answer 31

Mandatory / Voluntary

Question 32

T/F: If a purchase agreement or brokerage agreement requires the parties to use arbitration, the contract must state this requirement explicitly

Answer 32

True

Question 33

If a purchase agreement or brokerage agreement requires the parties to use arbitration, the mandatory arbitration provision must be in bold or ___ type, with language set forth in California Code of Civil Procedure § ____.

Answer 33

red; 1298

Question 34

Who must initial the arbitration provision of a brokerage or purchase agreement for it to be enforceable

Answer 34

Both parties

Question 35

When can the result of a mandatory arbitration be challenged in court?

Answer 35

1) if the arbitrator’s decision was the result of fraud, corruption, or similar misconduct or
2) if the arbitrator exceeded her powers; or
3) refused to hear relevant evidence

Question 36

What must the dissatisfied party in an arbitration prove

Answer 36

the arbitrator’s misconduct actually affected the arbitration award

Question 37

Courts ___ find the arbitrator’s misconduct affected the arbitration award

a) usually
b) rarely

Answer 37

rarely

Question 38

Why are large damages awards less likely in arbitration?

Answer 38

Arbitrators tend to be less emotional than juries

Question 39

3 reasons why businesses like arbitration

Answer 39

1) speed
2) certainty
3) arbitrators are less emotional than juries