FInal Exam

Question 1

What is negotiation?

Answer 1

A process in which disputants seek to resolve an interpersonal conflict through some form of dialog or communication

Question 2

In negotiations the disputants…

Answer 2

decide mutually whether and on what terms the conflict should be resolved

Question 3

What is mediation?

Answer 3

A form of assisted negotiation in which the disputants, either alone or assisted by agents, negotiate in the presence of a neutral professional

Question 4

Who are the “neutrals” in mediation?

Answer 4

the mediator or mediation panel

Question 5

What is the role of the mediator?

Answer 5

to assist the disputants in the negotiation and retain the authority to settle or compromise

Question 6

What is arbitration?

Answer 6

a form of adjudication in which the decision to adjudicate is made by contract between the disputants

Question 7

In arbitration, when can the agreement be made?

Answer 7

either in advance of any dispute arising or after the dispute arises.

Question 8

What is litigation?

Answer 8

an adjudication process that proceeds under the auspices of state or federal law

Question 9

What is a dispute/disputant?

Answer 9

Non-latent (“actual”) conflicts characterized by the disputants’ emphasis on incompatible needs, goals, and interests

Question 10

Disputes can be true or false conflicts but cannot be

Answer 10

latent (theres no dispute if you don’t see one)

Question 11

What is a neutral?

Answer 11

a third party who adjudicates a dispute and advocates in resolving and interpersonal dispute.

Question 12

What is a conflict?

Answer 12

The perceived and/or actual incompatibilities of needs, interests, and/or goals between two or more interdependent parties.

Question 13

What are the types of conflict?

Answer 13

Actual conflict
Latent conflict
Partially latent conflict
Displaced conflict
Misattributed conflict
True conflict
False conflict
Conflict escalation

Question 14

What is actual conflict?

Answer 14

the disputing parties are all aware of incompatibilities of interests, needs and goals that exist between one another.

Question 15

What is latent conflict?

Answer 15

no disputing party is aware of the conflict

Question 16

What is partially latent conflict?

Answer 16

some, but not all, of the disputing parties are aware of the conflict

ex. Dave and Dora decide to go to dinner. Unbeknownst to either one of them, Dave wants Chinese food, while Dora wants Indian.

Question 17

What is displaced conflict?

Answer 17

there are actual incompatibilities of goals, etc. but the participants do not perceive them.

Instead they perceive a different and minimally relevant or erroneous set of incompatible goals, etc.

ex. Fighting over a trivial matter such as what to eat, when the conflict is about more significant relationship problems like financial difficulties

Question 18

What is misattributed conflict?

Answer 18

a variant of displaced conflict, one of the disputants is involved in a latent conflict with a third party, and this conflict is being masked by the conflict among the disputing parties.

ex. A poorly managed employee might pick fights with other low-level employees rather than taking on his supervisor.

Misattributed conflicts often occur when a person has a conflict with a more powerful other, and unconsciously misdirects his/her frustration against a less powerful bystander

Question 19

What is true conflict?

Answer 19

there are actual incompatibilities of goals, etc.

Question 20

What is false conflict?

Answer 20

there is an incorrect perception on the part of one or both disputing parties that their goals, etc. are incompatible and in opposition

ex. Dean and Debbie are going out to dinner. They both want Japanese food, but Dean mistakenly believes Debbie wants Italian, and Debbie mistakenly believes Dean wants Mexican

Question 21

What is conflict escalation?

Answer 21

a situation in which an interpersonal conflict becomes successively more competitive and marked by impasse, spreading, intensification, and heightened animosity among participants against members of “the other side”

ex. Often in litigation, both sides may be far apart on the issue of liability; yet both sides may want to resolve the conflict without expending unnecessary time and money on protracted litigation

Question 22

What is a transaction?

Answer 22

a situation in which parties wish to create gains by creating a new relationship or altering an existing relationship

Question 23

What is an agent?

Answer 23

An individual or entity that stands “in the shoes” of a disputant

Question 24

What is an advocate?

Answer 24

A special form of agent who is required to adhere to ethical standards mandating that he/she vigorously and completely represent and advance the interests of the disputants being represented

Question 25

What is a constituent (or stakeholder)?

Answer 25

persons whose interests, goals, or needs are, or might be, affected by an interpersonal conflict.

Question 26

What is adjudication?

Answer 26

any form of dispute resolution in which the disputants submit (or are forced to submit) their interpersonal conflict to a third party the third party has the power to issue a decision which is binding on the disputants

Question 27

What is cause of action?

Answer 27

a group of operative facts giving rise to one or more bases for suing or a factual situation that entitles one person to obtain a remedy in court from another person

Question 28

What is a privilege?

Answer 28

prevent you from being held to give up something you think is private/confidential. Once a privilege is waived it is gone forever.

Question 29

What is relevant evidence?

Answer 29

Evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence all relevant evidence is admissible at trial, irrelevant evidence is not

Question 30

What types of evidence must be in writing?

Answer 30

Parole evidence rule and statute of frauds

Question 31

What are the hybrid/alternative forms of ADR?

Answer 31

Nonbinding evaluation

Question 32

What is nonbinding evaluation?

Answer 32

A form of ADR in which a neutral gives an opinion about or evaluation of the disputants dispute. The neutral may issue an advisory, nonbinding "award."

Question 33

Nonbinding evaluation helps disputants evaluate what?

Answer 33

the likely outcome of the dispute being taken to court.

Question 34

In nonbinding evaluation the evaluator is chosen to?

Answer 34

fit the purpose. for example, technical expert if the issues involve specialized knowledge.

Question 35

What is the primary purpose of nonbinding evaluation?

Answer 35

to get an assessment of the strengths/weaknesses of a disputants case, the goal is BATNA/WATNA clarification.

Question 35

What is the primary purpose of nonbinding evaluation?

Answer 35

to get an assessment of the strengths/weaknesses of a disputants case, the goal is BATNA/WATNA clarification.

Question 36

What are the forms of Nonbinding evaluation?

Answer 36

Nonbinding arbitration Minitrial Summary jury trial Neutral Evaluation Dispute review board

Question 37

What is nonbinding arbitration?

Answer 37

arbitration but without binding award, parties can reject "award" and can choose trial de novo

Question 38

What is a minitrial?

Answer 38

scaled down version of a trial (no jury, relaxed rules of evidence), no award per se but neutral generally provides a clarification of BATNA after the close of the case

Question 39

What is a summary jury trial?

Answer 39

designed to promote settlement by demonstrating to disputants and their attorneys what would happen if the case went to a "real" jury. In some jurisdictions, summary jury trials are court-mandated and court-supervised. Jury issues verdict, which is used by the disputants as a basis for settlement negotiations.

Question 40

What is neutral evaluation?

Answer 40

expert in the field in dispute is hired to give an assessment of the strengths and weaknesses of each sides case, may be ordered by court, neutral evaluates the case and then provides a probable range of outcomes.

Question 41

what are dispute review boards?

Answer 41

predominately used during construction projects, purpose if to keep construction projects moving on schedule.

Question 42

What is the parole evidence rule?

Answer 42

governs what kind of evidence parties to dispute can introduce when trying to determine the specific terms of a contract

Question 43

What is statute of frauds?

Answer 43

requirement that certain kinds of contracts must be reduced to writing.

Question 44

What is a contract, and why is it important to ADR?

Answer 44

a written agreement executed with proper legal formality, which ends the dispute and is legally enforceable. It is important to ADR because it ends in an agreement.

Question 45

Mediation Advantages over Litigation

Answer 45

* Quicker and cheaper- unless “creeping legal” * Can address all issues, not just one with a legal remedy * Can deal with the whole conflict, not just those implicating the parties * Mediation gives parties “ownership” and control over the resolution * Can educate the disputants in effectively negotiating future disputes

Question 46

Mediation disadvantages to litigation

Answer 46

* Does not always result in settlement, while litigation mandates a resolution * Does not create precedent for like disputes * Susceptible to exploitation (finding out what you can and going to litigation- cant do this) * Private nature precludes a “wronged” party from being vindicated

Question 47

Mediation advantages over negotiation

Answer 47

* Better able to move disputants past an impasse: you a neutral party, objectively saying when you need to back off * Mediator’s suggestions are not immediately “devalued” as are statements from one’s opponent- if you’re in a dispute already you aren’t trusting the other side already * Mediation better at teaching disputants how to negotiate more effectively * Good mediators better at diagnosing the conflict than the participants, who may be blind to their own behavior * Good mediators can introduce creative solutions not considered by the disputants

Question 48

Mediation disadvantages to negotiation

Answer 48

* More expensive (i.e., paying for a third party to intervene) * May be counterproductive if negotiations are progressing well

Question 49

Arbitration advantages over litigation

Answer 49

* Quicker and cheaper unless you factor in creeping legally (more likely to see it in arbitration) * Arbitrator not limited by pleadings/cause of action- better than a judge in some ways bc of this * Useful when there are choice of law issues, or international disputes: if you’re in a national/multinational field, you will file with state? * Can choose arbitrator with specific expertise * Greater sense of “finality”- you’ve agreed to take it to an arbitrator and you don’t get to appeal- ends w execution of award

Question 50

Arbitration disadvantages to litigation

Answer 50

* Informal arbitration can create due process problems * Mandatory arbitration (consumers) may violate constitutional rights * Limited appealability- fraud, misbehavior by arbitrator * Privacy makes it easier for bad actors to hide behavior from the public * Formal arbitration can be just as expensive and time consuming as litigation

Question 51

Arbitration advantages over negotiation

Answer 51

* More effective when the main source of the conflict is differing perception of the law * Greater finality * Less risk of “losing face” because decree is considered- sometimes people just don’t want to lose, or take less

Question 52

Arbitration disadvantages to negotiation

Answer 52

* More harmful to relationships * Disputants must surrender control to another * More expensive and time consuming * Less likely to generate creative, optimal solutions * More susceptible to legal maneuvering

Question 53

Arbitration advantages over Mediation

Answer 53

* More effective when the main source of the conflict is differing perception of the law * Greater finality * Informal arbitration might be quicker than facilitated mediation- arbitrator has the ability to say you’re wrong and cut to the chase * Less risk of “losing face” because decree is considered

Question 54

Disadvantages to mediation

Answer 54

* More harmful to relationships: agreements are easier to live with * Disputants must surrender control: still have control in mediation bc you can walk away * Less likely to generate creative, optimal solutions * More likely to impair due process rights * Formal arbitration more expensive and time consuming * More susceptible to legal maneuvering