Chapter 5

Question 1

As a general rule, how many lawsuits settle prior to the completion of the litigation process?

Answer 1

95%

Question 2

conflict

Answer 2

exists whenever persons have 2 or more points of view on 1 or more issue

Question 3

when does a conflict turn into a dispute

Answer 3

when one party makes a claim the other denies

Question 4

negotiation

Answer 4

Persuade or coerce someone to do what you want them to do

Consensual bargaining process in which parties attempt to reach agreement on the dispute at matter

MOST POPULAR MEANS OF DISPUTE RESOLUTION

Question 5

Negotiation styles

Answer 5

avoid

compete

compromise

accomodate

collaborate

Question 6

collaboration

Answer 6

win-win in a negotiation

Question 7

compromise

Answer 7

lose-lose in a negotation

Question 8

types of negotations

Answer 8

positional & principled

Question 9

positional negotiation

Answer 9

begins competitively in an attempt to close the gap of a monetary agreement

give and take

distributive bargaining

Question 10

principled negotiation

Answer 10

looks beyond simple positions to focus more on long term o the situation and relationships among parties

Question 11

what is the outcome of a good negotiation

Answer 11

both parties walk away bearably unhappy - Nobody feels victorious, no one feels like a loser

level playing field, and can work with each other in the future

Question 12

types of dispute resolution systems

Answer 12

trial and appeal - most expensive in time, cost and emotions

focus groups

arbitration

mediation

negotiated settlement - least expensive in time, cost and emotions

Question 13

reasons for settlement without litigation

Answer 13

lower costs

personal reasons
- compromise
- dislike of trouble
- opinions of others

business reasons
- bad for publicity, reputation

Question 14

arbitration

Answer 14

Resolving disputes common in business scenarios- Favored by court systems

3rd party makes the final decision

Capacity of flexible adjudicatory process in mandatory public context and private voluntary setting

Question 15

is arbitration binding?

Answer 15

typically yes, it allows the arbitrator to act like a hudge and impose a decision upon you

Question 16

mandatory arbitration

Answer 16

legally binding agreement to resolve disputes with an arbitrator instead of a court

Question 17

voluntary arbitration

Answer 17

process where two parties agree to have a neutral third party resolve a dispute

Question 18

reasons for arbitration

Answer 18

quick & inexpensive resolution

ease court dockets

expert assistance

revent trend towards arbitration to avoid litigation process

Question 19

who are arbitrators

Answer 19

specialized in the industry, expert 3rd party to make for a more legitimate decision

typically retired judges

Question 20

3 matters for arbitration

Answer 20

question of:
- fact
- law
- fact and law

Question 21

how many arbitrators on a case?

Answer 21

1-3

Question 22

can arbitration be used as a prelude?

Answer 22

NO - If you don’t like outcome of litigation, you can’t go to arbitration

Question 23

arbitration awards
- binding?
- filed with who?

Answer 23

yes, binding

filed with court clerk and enforced by court

Question 24

what are the only ground for which an arbitration award can be overturned?

Answer 24

if arbitrator acted fraudulently or innapropriately

Question 25

Federal Arbitration Act (FAA)

Answer 25

law that makes arbitration agreements enforceable in the United States

Question 26

mandated arbitration

Answer 26

states have been adopting recently bc it speeds up the process cases below x dollar amt and reserved for specific subject matters

Question 27

steps of mandatory arbitration

Answer 27

submit claim discovery arbitration determines - admissibility of evidence - law/facts of case - objections Hearing process takes 8 months

Question 28

how do parties agree to voluntary arbitration?

Answer 28

Pre-dispute arbitration clause - pursue arbitration if dispute arises Post-dispute arbitration clause - while in litigation, move to arbitration

Question 29

voluntary/contract baded judicial review of arbitration

Answer 29

Award final Findings of fact/law - conclusive Limited review by court

Question 30

Statutorily mandated judicial review of arbitration

Answer 30

In accord with procedural/due process of law Constitutional challenges De Novo Review

Question 31

what could deter outcome of arbitration during judicial review?

Answer 31

fraud corruption misconduct exceeding of powers

Question 32

who are mediators

Answer 32

3rd party experts in law

Question 33

mediation

Answer 33

3rd party assists in resolving dispute and avoid litigation ST structured task oriented participatory intervention process Parties shape their own resolution collectively

Question 34

settlement through mediation

Answer 34

mutual choice through help of a mediator mediator never imposes decision

Question 35

perks to mediation

Answer 35

can be more creative with an outcome and address the more grey areas when it comes to the decision keeps costs down easy to retain relationships with other parties

Question 36

disadvantages of mediation

Answer 36

no enforcement selection of mediator - qualifications

Question 37

mediation - responsiblities under mediator, parties agreement style

Answer 37

mediator - opening statement and rules parties - view statement - exchange - discuss options agrement - written/signed

Question 38

process of mediation

Answer 38

diffusal of emotions - identify and narrow issues in dispute - explore mutually beneficial outcomes discovery - get a sense of both sides find right mediator

Question 39

other alternatives to dispute resolution

Answer 39

mock trial minitrial (confidential)

Question 40

minitrial

Answer 40

private, voluntary, and non-binding alternative to going to court Focus on central issues Back to business problem

Question 41

5 ways to resolve disputes

Answer 41

negotiation ajudication mediation arbitration hybrids/spinoffs

Question 42

ajudication

Answer 42

Traditional response to dispute between parties for one lawyer to to file a complaint in the judicial system Neutral judge has power to control process and the solution Lengthy and time consuming Damages relationships