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Flashcards in Ch 5 Deck (41)
0

Conflict

Exists when there are 2 or more points of view

Exists in any relationship people have, good or bad

1

Dispute

Arises when 1 party makes a claim that another party
Denies

2

Negotiation

Process used to persuade or coerce someone to do
What you want them to do

3

Positional bargaining AKA Positional negotiation

What does positional bargaining not focus on?

Parties state respective expectations and negotiate to
Middle ground

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

4

Principled, interest-based negotiations: 7 elements

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

5

Principled, interest-based negotiations: communication

Sharing nature of dissatisfaction with specifics
or difficulties of running operations

Having each party listen to others concers

6

Principled, interest-based negotiations: relationship

Each party can discuss benefits from continuing their
Relationship

Discuss maintaining or enhancing relationship

7

Principled, interest-based negotiations: interests

Each party communicates real interests to each other

8

Principled, interest-based negotiations: options

Each party brainstorms options of solutions to dispute

9

Principled, interest-based negotiations: legitimacy

Involves demonstrating to other party that you actually
intend to do what you said

10

Principled, interest-based negotiations: alternatives

Outcomes possible without agreement of other party

Things parties can do away from the negotiation table

Parties should understand the alternatives during
negotiation

11

Principled, interest-based negotiations: commitment

Any successful negotiation must conclude with the parties
Making realistic commitments that can be put into practice

12

ADR systems, 3 popular ADR systems?

Alternative dispute resolution systems

1 settlement
2 mediation
3 arbitration

13

Settlements, why businesses usually settle in suits against customers

Avoiding litigation

Not good business from public relations standpoint

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

14

Focus groups

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

15

Arbitration, why is it used?

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)

16

Arbitrator

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

Arbitrator takes place of jury and judge by making
Decision

17

Submission

Process of beginning arbitration proceeding

18

Voluntary arbitration

When both parties in dispute agree to use arbitration

19

Mandatory arbitration

Statute or court requires parties to arbitrate

20

Award

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

States which party us to pay other sum of money


21

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

Usually chosen by disputing parties

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

22

Arbitration: expertise

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

Ex. Medical, real estate, academic, appraiser

23

Number of arbitrators used is based on...

Agreement of parties

Usually 1 or 3 arbitrators

24

Federal Arbitration Act (FAA)

Encourages businesses to use arbitration instead of
litigation

25

EEOC

Equal employment opportunity commission

26

State laws can't prevent arbitration of disputes if the parties are...

Engaged in or impact interstate commerce

27

2 forms of voluntary arbitration

1 predispute arbitration clause

2 post dispute arbitration agreement

28

Voluntary arbitrate: predispute arbitration clause

Commonly appear in business contracts

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

29

Voluntary arbitration: postdispute arbitration agreement

Arise when parties already in dispute decide arbitration
Is better than litigation

30

Judicial review: voluntary arbitration award

Statutorily mandated arbitration award

Awards from arbitration are often final

Not usually made void in judicial review

Higher level of judicial review for statutorily mandated
Arbitration aware

31

De novo judicial review

Occurs when dissatisfied party rejects arbitrators award

Means court tries issue anew as if no arbitration occurred

32

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

Record of proceedings

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

33

Federal Arbitration Act

Provides guidelines where an arbitration award can be
vacated

For reasons having to do with misconduct of arbitrators

34

Mediation, what can mediators not impose?

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

35

What does mediation often allow?

Allows disputing parties to reestablish relationships

36

3 reasons mediations have gained in popularity?

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

37

6 typical steps in mediation process

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)

38

Caucus

Private meeting with mediator

39

Judicial review and mediation

Mediation is not subject to judicial review

40

Med-Arb

Parties resolve all matters using mediation and agree
To arbitrate unresolved matters