Ch 5

Question 0

Dispute

Answer 0

Arises when 1 party makes a claim that another party

Denies

Question 1

Conflict

Answer 1

Exists when there are 2 or more points of view

Exists in any relationship people have, good or bad

Question 2

Negotiation

Answer 2

Process used to persuade or coerce someone to do

What you want them to do

Question 3

Positional bargaining AKA Positional negotiation

What does positional bargaining not focus on?

Answer 3

Parties state respective expectations and negotiate to
Middle ground

Positional bargaining does not focus on underlying conflicts
(like product quality)

Question 4

Principled, interest-based negotiations: 7 elements

Answer 4

1 communication 
2 relationship
3 interests
4 options
5 legitimacy
6 alternatives
7 commitment

Question 5

Principled, interest-based negotiations: communication

Answer 5

Sharing nature of dissatisfaction with specifics
or difficulties of running operations

Having each party listen to others concers

Question 6

Principled, interest-based negotiations: relationship

Answer 6

Each party can discuss benefits from continuing their
Relationship

Discuss maintaining or enhancing relationship

Question 7

Principled, interest-based negotiations: interests

Answer 7

Each party communicates real interests to each other

Question 8

Principled, interest-based negotiations: options

Answer 8

Each party brainstorms options of solutions to dispute

Question 9

Principled, interest-based negotiations: legitimacy

Answer 9

Involves demonstrating to other party that you actually

intend to do what you said

Question 10

Principled, interest-based negotiations: alternatives

Answer 10

Outcomes possible without agreement of other party

Things parties can do away from the negotiation table

Parties should understand the alternatives during
negotiation

Question 11

Principled, interest-based negotiations: commitment

Answer 11

Any successful negotiation must conclude with the parties

Making realistic commitments that can be put into practice

Question 12

ADR systems, 3 popular ADR systems?

Answer 12

Alternative dispute resolution systems

1 settlement
2 mediation
3 arbitration

Question 13

Settlements, why businesses usually settle in suits against customers

Answer 13

Avoiding litigation

Not good business from public relations standpoint

Juries favor customers, b/c businesses have more resources
To pay

Question 14

Focus groups

Answer 14

Used in significant cases

Attorneys assemble group of citizens and present their
evidence. This group deliberates and makes findings

Gives attorneys insight into how the jury will find verdict
In trial

Question 15

Arbitration, why is it used?

Answer 15

Disputing parties agree to have 3rd party decide Merits
Of dispute

Private proceeding with no public record available to
The press

Used to avoid various litigation expenses, solve disputes
Quicker, preserve business relationship (since private)

Question 16

Arbitrator

Answer 16

Decision maker (disinterested in financial impact of decision)
And neutral regarding issues of dispute

Arbitrator takes place of jury and judge by making
Decision

Question 17

Submission

Answer 17

Process of beginning arbitration proceeding

Question 18

Voluntary arbitration

Answer 18

When both parties in dispute agree to use arbitration

Question 19

Mandatory arbitration

Answer 19

Statute or court requires parties to arbitrate

Question 20

Award

Answer 20

Written (in most states) decision of arbitrator’s decision

States which party us to pay other sum of money

Question 21

How are arbitrators usually chosen, what are 2 other ways they can be chosen?

Answer 21

Usually chosen by disputing parties

1 chosen by provision in agreement to arbitrated
2 statute requiring arbitration

Question 22

Arbitration: expertise

Answer 22

Arbitration is a preferred method to resolving a dispute
Because has expert on matter solve dispute

Ex. Medical, real estate, academic, appraiser

Question 23

Number of arbitrators used is based on…

Answer 23

Agreement of parties

Usually 1 or 3 arbitrators

Question 24

Federal Arbitration Act (FAA)

Answer 24

Encourages businesses to use arbitration instead of

litigation

Question 25

EEOC

Answer 25

Equal employment opportunity commission

Question 26

State laws can’t prevent arbitration of disputes if the parties are…

Answer 26

Engaged in or impact interstate commerce

Question 27

2 forms of voluntary arbitration

Answer 27

1 predispute arbitration clause

2 post dispute arbitration agreement

Question 28

Voluntary arbitrate: predispute arbitration clause

Answer 28

Commonly appear in business contracts

Contracting parties understand that conflicts and disputes
may occur and if they arise should be arbitrated

Question 29

Voluntary arbitration: postdispute arbitration agreement

Answer 29

Arise when parties already in dispute decide arbitration

Is better than litigation

Question 30

Judicial review: voluntary arbitration award

Statutorily mandated arbitration award

Answer 30

Awards from arbitration are often final

Not usually made void in judicial review

Higher level of judicial review for statutorily mandated
Arbitration aware

Question 31

De novo judicial review

Answer 31

Occurs when dissatisfied party rejects arbitrators award

Means court tries issue anew as if no arbitration occurred

Question 32

What is required in mandatory arbitrations? 2) what is necessary to have enough judicial review to satisfy due process?

Answer 32

Record of proceedings

2) findings of fact and conclusions of law are essential
If there is enough judicial review to satisfy due process

Question 33

Federal Arbitration Act

Answer 33

Provides guidelines where an arbitration award can be
vacated

For reasons having to do with misconduct of arbitrators

Question 34

Mediation, what can mediators not impose?

Answer 34

ADR Process where third person called mediator attempts
To assist disputing parties in resolving their differences

Negotiation

Mediators can’t impose binding solution on the parties

Question 35

What does mediation often allow?

Answer 35

Allows disputing parties to reestablish relationships

Question 36

3 reasons mediations have gained in popularity?

Answer 36

1 disputing parties retain control over when to settle and
when to continue disputing

2 cheaper than arbitration
3 reduction in legal system governing the process

Question 37

6 typical steps in mediation process

Answer 37

1 mediators intro and explanation of mediation
2 parties' opening statements
3 parties exchange/negotiation
4 brainstorm solutions
5 agreement written and signed
6 private sessions or caucuses (optional
At mediator's discretion)

Question 38

Caucus

Answer 38

Private meeting with mediator

Question 39

Judicial review and mediation

Answer 39

Mediation is not subject to judicial review

Question 40

Med-Arb

Answer 40

Parties resolve all matters using mediation and agree

To arbitrate unresolved matters