Survey Flashcards
learn bb (48 cards)
Individual characteristics theories of conflict
Needs theory (maslow), modern identity theory
dimensions of conflict
- emotional: fear, sadness, bitterness, anger, or hopelessness towards someone indicates a conflict
- cognitive: belief one’s interests are incompatible with another’s
- behavioral: actions taken to express thoughts or feelings of conflict
Resolution can be based on:
Power: who has more power in the conflict?
Rights: what does the law recognize?
Interests: what are parties’ underlying concerns?
social processes theories
Build on individual characteristics theories, emphasizes relationship between parties. Conflict is result of competition for resources
social structure theories
emphasize institutionalized structures organizing society, power and disparities. Marxism, critical theory
life cycle of a dispute
perceived injurious event, initiation of lawsuit or dispute resolution process.
dispute tree
Consensual processes
Parties decide the outcome. Negotiation and mediation, conciliation. may focus on positions or interests.
Adjudicatory processes
Third party neutral decides the outcome. Arbitration, trial, private tribunals.
Tend to focus on positions, seen as win/lose.
Position v interest
Position is what the parties say they want, interests motivate positions.
Mediation-arbitration
parties attempt to mediate, go to arbitration if they cannot. advantage: guaranteed outcome. disadvantage: same neutral serves as both mediator and arbitrator, meaning confidential info may influence arbitration, or parties would be less willing to disclose info in mediation.
Arbitration-mediation
Arbitrator makes decision which is private from parties while they mediate. If they reach an agreement, decision stays private, if they do not, decision is disclosed and binding.
Issue: arbitrator may guide parties to the decision he made.
mini trial
lawyers present abbreviated cases to a panel of executives and a neutral who then make a decision.
Summary jury trial
like a mini trial but before a jury with no authority or binding power.
early neutral evaluation
neutral identifies the issues and provides an early eval, may predict outcome
fact finding
neutral makes findings on contested issues of fact, like property value
ombuds
official who receives and handles complaints and disputes within an institution, usually in long term care situations.
Lawyers roles in dispute processing
may represent parties, counsel clients, serve as neutrals
Three types of arbitration and their governing law
- Labor management: between employers and unions- gov by NLRA
- Commercial arbitrations, between businesses, customer and business, employers and non-union employes. gov by FAA + state law
- international arbitration: UN + NY convention
Arbitration process
Trial-like: parties submit dispute to a neutral third party. Can binding or nonbinding. Not regulated, but formalized by AAA and other orgs.
Federal Arbitration Act (FAA) Section 2
Arbitration clauses within a larger contract are considered to be its own contract, presumed valid. Subject to contract defenses
Defenses to arbitration clauses
- Fraud: uncommon because the larger contract being fraudulent does not make arbitration clause fraudulent. Provision itself must be fraudulently induced.
- Unconscionability: procedural (hidden clause) or substantive (too one sided, overly harsh or unfair).
These defenses have very high standards.
FAA section 10
Courts do not review merits of an award. Power to vacate award is limited. Grounds for vacatur: corruption, fraud, partiality, arbitrator misconduct, arbitrators that exceed their power.
Non-statutory grounds for vacatur.
- Manifest disregard: arbitrator knows clearly controlling law and disregards it.
- public policy: must be clearly defined and controlling.
- others: arbitrary and capricious, irrationality
Sobel v. Hertz
Trial ct judge tried to force arbitrator to provide reasoning for the award to determine if it was manifest disregard. Appellate ct: judges cannot force reasoning, doing so would negate arbitration’s purpose.
